Amicus Curiae Brief — Hanousek v. United States

S.

Guprems Court

U.

EILED

SEP 20 1999

No. 99-323 a an

In the

Supreme Court of the United States

+

EDWARD HANOUSEK, JR..,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

+

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

+

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONER

+

*M. REED HOPPER

*Counsel of Record

ROBIN L. RIVETT

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amicus Curiae

Pacific Legal Foundation

A abi:

a —

LO OE

i

QUESTIONS PRESENTED

1. Is the Clean Water Act a “public welfare” statute (as

the Ninth, Eighth, and Second Circuits have ruled, but contrary

to the rulings of the Fifth Circuit and arguably the Fourth

Circuit) so as to justify criminal conviction and imprisonment,

without proof of mens rea, for otherwise innocent conduct?

2. Does the Due Process Clause restrict eliminating

mens rea for offenses punishable by significant terms of impris-

onment of one year or more?

3. Does the unmodified word “negligently” in

section 1319(c)(1)(A) of the Clean Water Act, a criminal statute

that provides for both misdemeanor and felony penalties, mean

negligence in an ordinary civil tort sense or negligence in an

aggravated criminal sense?

ii

TABLE OF CONTENTS

Page

CU eee PIO EEE oc cccccnccccccecceecscces i

TABLE OF AUTHORITIES ................0000065 ili

IDENTITY AND INTEREST

a. vv pape eesdeeeeeesooenene |

EE aie nd 6 cee ekensheeetn neh ees en 2

POSSE GE PEGE coccvcccsctecvsssoveees 3

SUMMARY OF THE ARGUMENT ................. 5

I i ee ee ee ees ee ks eke 6

1. THIS COURT SHOULD GRANT THE

WRIT OF CERTIORARI TO DETERMINE

WHETHER THE CLEAN WATER ACT IS

“PUBLIC WELFARE LEGISLATION”

AUTHORIZING CRIMINAL PENALTIES,

INCLUDING SUBSTANTIAL TERMS OF

IMPRISONMENT, FOR APPARENTLY

PE CEE Co cbnvdssoccocecessce 6

A. Overzealous Application of the “Public

Welfare Offense” Doctrine Raises

Questions Both Fundamental and Far-

Reaching in Federal Criminal Law That

Warrant a Response by This Court ........... 6

B. Contrary to the Ninth Circuit, This

Court Has Tried to Limit, Not Expand,

the Doctrine of “Public Welfare Offenses” .... 10

C. Substantial Jail Terms Are Inconsistent

with the “Public Welfare Offense” Doctrine ... 17

COLA AIS oo ccccccccccccccccesesesccscesces 20

TABLE OF AUTHORITIES

Page

Cases

Barnes v. State, 19 Conn. 398 (1849) .............4.5. 12

Commonwealth v. Boynton, 2 Allen 160 (Mass. 1861) ... 12

Liparota v. United States, 471 U.S. 419 (1985) ........ 18

Morissette v. United States, 342 U.S.

DE stnccoeanseceesecescecees 5, 9-11, 16-17

Myers v. State, 1 Conn. 502 (1816) ... 2... 2... ee ee 11

Ratzlaf v. United States, 510 U.S. 135 (1994) ....... 19-20

Staples v. United States, 511 U.S. 600 (1994) ...... 5, 17-19

United States v. Balint, 258 U.S. 250 (1922) ........ 10, 16

United States v. Behrman, 258 U.S. 280 (1922) ........ 10

United States v. Unser, 165 F.3d 755 (1999)... ......... 6

Statutes

ee SED Sectcccisccccccusescess 4, 8,19

DE cccéaeensesseedecedetocessoscecees 4

Rules

PEED aRe6GicebcdecwebSeAbuecddceeccececeess 1

DEEEUEE Sonnnceceeceeeanendesecceccecescaceess 1

Miscellaneous

Kevin Gaynor and Thomas Bartman, Criminal

Enforcement of Environmental Laws,

10 Colo. J. of Int] Environmental

Law & Policy 39 (Winter, 1999)... ...........4.. 7-9

iv

TABLE OF AUTHORITIES—C ontinued

Page

Francis Bowes Sayre, Public Welfare Offenses,

33 Colum. L. Rev. 55 (1933) ........-.+-- 11-13, 15-16

2 F. Pollock & F. Maitland, History of English

Law 465 (2d ed. 1899) ...... 2. e cece eee eee eees 18

1

IDENTITY AND INTEREST

OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37.2, Pacific Legal

Foundation respectfully submits this brief amicus curiae in

support of the Petition for Writ of Certiorari.' Written consent

was granted by counsel for all parties and lodged with the Clerk

of this Court.

Pacific Legal Foundation (PLF) is the largest and most

experienced nonprofit public interest law foundation of its kind

in America. PLF was founded in 1973 and provides a voice in

the courts for mainstream Americans who believe in limited

government, individual rights, and free enterprise. PLF litigates

nationwide in state and federal courts with the support of

thousands of citizens from coast to coast.

In its fight to protect fundamental constitutional rights,

PLF becomes involved in cases that raise important public policy

considerations that may create significant legal precedents.

Amicus participation is approved by a voluntary Board of

Trustees where PLF’s perspective will assist the court in

resolving the underlying legal issues. PLF supports a broad

view of the public interest and promotes balance and common

sense in the administration of laws and regulations.

There is an alarming trend among federal agencies and the

courts to expand the enforcement power of the government,

merely for prosecutorial convenience, by adopting statutory

interpretations that cannot be squared with the plain meaning of

the act, the intent of Congress, or constitutional principles of

due process. This case is a singular example of government

overreaching.

' Pursuant to Supreme Court Rule 37.6, Amicus Curiae Pacific Legal

Foundation affirms that no counsel for any party in this case authored

this brief in whole or in part; and furthermore that no person or entity

has made a monetary contribution specifically for the preparation or

submission of this brief.

2

The Ninth Circuit has held wholly unintentional conduct

may subject ordinary citizens to substantial fines and even

imprisonment. Under this dangerous precedent, ordinary

negligence—or a simple mistake—is as much a crime as an

intentional and malicious violation of the law. ‘This insidious

attack on the liberty of ordinary people is contrary to common

sense and Supreme Court precedent. Strict liability offenses

undermine the freedoms of all citizens and should be narrowly

construed.

PLF has a long history of amicus curiae participation in this

Court and believes its public policy perspective will provide a

necessary viewpoint on the issues presented in this case.

INTRODUCTION

This case presents an extreme application of the “public

welfare offense” doctrine. Under Ninth Circuit jurisprudence,

apparently innocent conduct becomes criminal—a backhoe

operator inadvertently cracks an oil pipeline causing a spill in a

nearby river, and the backhoe operator’s supervisor is convicted

of a crime and sentenced to six months in jail, six months in a

half-way house, six months probation, and fined $5,000. This

is contrary to Supreme Court precedent and an assault on

common sense. Only in very limited circumstances has this

Court inferred from congressional silence that Congress did not

intend to require proof of criminal intent to establish a criminal

offense. However, some lower courts are regularly making just

such an inference.

To be sure, strict criminal liability eases the prosecution’s

path to conviction but only at the expense of fundamental

concepts of fairness and constitutional principles of due process.

This case, and others like it, turn our traditional values upside

down. Consider the case of Unser v. United States, United

States Supreme Court No. 98-1600, also on petition to this

Court. In that case, Bobby Unser was charged and convicted of

a crime for operating a snowmobile in an unmarked wilderness

3

area where he accidentally wandered while disoriented in a

sudden snowstorm. Unser nearly lost his life in the incident but

that did not stop overzealous law enforcement officers from

citing him for his inadvertent infraction of the law. Nor did it

stop the Tenth Circuit from upholding Unser’s criminal

conviction as a “public welfare offense”—an offense requiring

no mens rea.

American jurisprudence is founded on the bedrock

principle that it is better to let the guilty go free than unfairly

punish the innocent. The idea that one can be held criminally

liable, even imprisoned, for inadvertent conduct serves no

meaningful law enforcement purpose. It neither reforms con-

duct nor deters wrongdoing.

Strict criminal liability for ordinary acts is reminiscent of

those immature systems of law whereby a tribunal is convened

only to establish guilt for enemies of the state and not to

determine innocence. This type of process is incompatible with

a free society and should not be countenanced by this Court or

any other. For this reason, this Court should grant the Petition

for Writ of Certiorari in this case, as well as in Unser v. United

States, and place meaningful limits on the expanding scope of

the “public welfare offense” doctrine. Virtually all of our laws

serve to protect public health and welfare. All of us are capable

of apparently innocent acts that put us in conflict with such

laws. This Court should not allow federal statutes to be read to

dispense with a mens rea where doing so would criminalize a

broad range of innocent conduct.

STATEMENT OF THE CASE

Edward Hanousek was employed as road master of the

White Pass & Yukon Railroad. As road master, Hanousek was

responsible to oversee track maintenance and special projects

for the railroad. One of the special projects under Hanousek’s

supervision was the quarrying of rock at a site near the Skagway

River in Alaska. The project involved blasting rock out-

4

croppings and loading the rock onto railroad cars with a

backhoe. An oil pipeline runs next to the track at or above

ground. To protect tl _ipeline, a platform was constructed

over the pipeline on which the backhoe operated while loading

rock. After one loading operation, a backhoe operator noticed

rock debris just off the tracks near the pipeline about 150 to 300

feet from the work platform. The backhoe operator drove the

backhoe to the debris and, while attempting to “sweep” the

rocks away from the tracks, he ruptured the pipeline causing oil

to be discharged into the Skagway River in violation of the

Clean Water Act.

As Hanousek was responsible for all aspects of the

operation, he was charged with a criminal count of negligently

discharging a “harmful quantity” of oil into a “navigable water”

of the United States. Section 1319(c)(1)(A) of the Clean Water

Act provides that any person who “negligently” violates sec-

tion 1321(b)(3) shall be punishable by fine or imprisonment or

both. Section 1321(b)\(3), in turn, prohibits the discharge of a

“harmful quanitity” of oil into “navigable waters of the United

States.” Although the term “negligently” is undefined and this

provision carries both misdemeanor and felony penalties, at trial

the judge told the jurors Hanousek could be held criminally

liable for acts of “ordinary” negligence. Hanousek was con-

victed of the violation and was sentenced to six months in

prison, six months in a half-way house, six months of supervised

release, and was fined $5,000.

Hanousek appealed his conviction on grounds the Clean

Water Act did not allow for criminal liability for acts of

“ordinary” as opposed to “gross” negligence. He also argued

that to hold him criminally liable for an unintentional act, void

of criminal intent, would violate his due process rights.

However, the Ninth Circuit Court of Appeals held that Congress

intended “ordinary” negligent acts to be subject to criminal

penalties. And, purportedly relying on the precedents of this

Court, the Ninth Circuit also held that the Clean Water Act

5

constitutes “public welfare legislation.” Under such legislation,

the court reasoned, criminal intent or mens rea, is not required

for criminal prosecution.

SUMMARY OF THE ARGUMENT

The Ninth Circuit has taken the “public welfare offense”

doctrine to a ridiculous extreme, finding that wholly inadvertent

conduct is a crime warranting a substantial prison sentence.

This ruling is important because it draws into question

fundamental principles of criminal law. With the complicity of

the courts, legislators and prosecutorial agencies are seeking

quick convictions based on strict liability offenses. This is most

evident in the increasing enforcement trends under federal

environmental statutes which are readily characterized as “public

welfare” statutes. But when such offenses encompass

innocuous acts or wholly inadvertent conduct, they fail to deter

crime and defy common sense. Such strict regulation violates

the long-held doctrine that an injury can amount to a crime only

when inflicted by guilty intention.

This Court has tried to limit “public welfare offenses”

rather than expand them as the Ninth Circuit has done in this

case. In Morissette v. United States, 342 U.S. 246 (1952), this

Court affirmed that proof of a guilty mind is requisite to a

criminal conviction and warned that a literal interpretation of its

so-called “public welfare offense” cases is inconsistent with this

Court’s philosophy of criminal justice and any ordinary sense of

fairness.

More recently, in Staples v. United States, 511 U.S. 600

(1994), this Court expressed grave concern over the imposition

of prison terms for crimes that do not require a criminal intent.

In fact, this Court stated it would not be inclined to find a

“public welfare offense” where the penalties include substantial

jail terms and declared the very concept of “public welfare

otiense” may simply be incompatible with a felony. After all,

according to this Court, “felony” is as bad a word as you can

6

give to a man. But the provision under which Hanousek was

convicted provides both misdemeanor and felony penalties for

the same negligent conduct. Therefore, this Court should grant

review and overturn the decision below.

ARGUMENT

THIS COURT SHOULD GRANT THE WRIT

OF CERTIORARI TO DETERMINE WHETHER

THE CLEAN WATER ACT IS “PUBLIC WELFARE

LEGISLATION” AUTHORIZING CRIMINAL

PENALTIES, INCLUDING SUBSTANTIAL TERMS

OF IMPRISONMENT, FOR APPARENTLY

INNOCENT CONDUCT

A. Overzealous Application of the

“Public Welfare Offense” Doctrine

Raises Questions Both Fundamental and

Far-Reaching in Federal Criminal Law

That Warrant a Response by This Court

The importance of this case cannot be overstated. In

addition to the split among the circuits, addressed by Petitioner,

this case involves legal issues requiring examination of some of

the most fundamental concepts in criminal law and has

significance far beyond the parties. See United States v. Unser,

165 F.3d 755, 757 (1999).

Indeed, this case is significant because the lower court

decision authorizes criminal prosecution for wholly inadvertent

conduct. In fact, this case turns fundamental concepts of

criminal law on their head. It does away with considerations of

intent and infers strict criminal liability from congressional

silence. The lower court’s lavish extension of the so-called

“public welfare offense” exceeds the bounds of reason, good

government, and the established precedents of this Court.

Regrettably, overzealous application of the “public welfare

offense” seems to be a growing trend. More and more prose-

7

cutorial agencies rely on the ease of strict liability statutes to get

a quick conviction. Nowhere is this more evident than in the

enforcement of our federal environmental laws.

In a recent law review article, Kevin Gaynor and Thomas

Bartman, Criminal Enforcement of Environmental Laws,

10 Colorado Journal of International Environmental Law &

Policy 39, Winter, 1999, catalogue the increase in environmental

law enforcement over the last 10 or more years. They discuss

with some concern the tendency for courts and prosecutors to

raise the penalty while lowering the bar on convictions. “Thus,

the sanctions for environmental crimes increasingly include

significant terms of imprisonment.” /d. at 40. But,

{ujnder current case law in most circuits, the

standard of intent the government must show for a

conviction is less than a general intent standard and

does not necessarily require proof that the defendant

had knowledge of ali the material facts.

Id. at 39.

Statistically, the authors report:

EPA referrals of criminal cases to the Justice

Department have steadily and dramatically increased

from 20 in fiscal year 1982 to 107 in 1992 to a

record 278 in 1997. Criminal fines in fiscal year 1997

were a record $169.3 million. In fiscal year 1996,

221 defendants were criminally charged with environ-

mental offenses, and individuals were sentenced to

1,116 months in prison.

Id. at 40.

These figures would be something to cheer about if they

included only serious offenses occasioned by willful conduct.

But to the extent they include minor violations occasioned by

innocent conduct, these figures are cause for concern. While

8

cases such as Hanousek and Unser give us a warm feeling

because they add arithmetically to the appearance of vigorous

enforcement of the law, they actually document the eroding

rights of the individual—rights the courts should be protecting

but are not.

According to Gaynor and Bartman, the latest amendments

to each major environmental statute included new criminal

penalties and strengthened existing penalties. Some of these

amendments expanded the scope of criminal liability by

introducing lower or no intent crimes, such as mere “negligent”

conduct under the Clean Air Act, id. at 40, or, as in this case,

the Clean Water Act, 33 U.S.C. § 1319(c)(1) (providing

misdemeanor penalty for first time negligent introduction of

unpermitted pollutant into waterway and felony penalty of up to

$50,000 per day of violation and two years in prison for

subsequent violations). Moreover,

[t]he federal sentencing guidelines governs [sic] the

seniencing of individuals convicted of environmental

offenses and has limited the discretion of judges to

mitigate statutory penalties, even in cases that do not

involve environmental injury.

Gaynor and Bartman, Criminal Enforcement of Environmental

Laws, 10 Colo. J. Int’] Envtl. L. & Poly at 41.

Gaynor and Bartman conclude:

The view of environmental laws as “public welfare”

Statutes and the corresponding trend toward liberal

construction and precedent involving nonenviron-

mental public welfare statutes have complicated the

issue of culpability.

Id. at 59.

This complicated issue of culpability requires clarification

by this Court. Clearly, strict criminal liability offenses are

9

proliferating. As they expand to encompass inadvertent acts

such as those at issue in this case, they put ordinary citizens at

risk of criminal conviction for apparently innocent conduct. The

imposition of criminal penalties in the absence of a criminal

intent violates the central theme of criminal law that

“wrongdoing must be conscious to be criminal” and is incom-

patible with a free society. See Morissette, 342 U.S at 252.

The observation and admonition of Gaynor and Bartman

warrants the attention of this Court:

EPA Administrator Carol Browner has advocat-

ed recent environmental criminal legislation on

grounds that environmental criminals should be

treated forcefully, like drug dealers. No acknowl-

edgment is made in this connection that drug dealers

usually receive a higher intent standard than has been

the case in the area of environmental crimes. One of

the supporters of the Environmental Crimes and

Enforcement Act of 1996, Senator Frank

Lautenberg, noted that it was “aimed at bad actors

who violate our environmental laws purposely,

intentionally, or with knowing disregard for the

impact of their actions.” Environmental Crimes and

Enforcement Act of 1996, S. 2096, 104th Cong.

(1996). These are clearly the proper targets of

criminal prosecution, rather than the persons

potentially and actually reached by the slip-and-fall

negligence standard that has generally been followed

in this area.

Gaynor and Bartman, Criminal Enforcement of Environmental

Laws, 10 Colo. J. Int’] Env. L. & Poly. at n.334.

To protect the innocent from criminal conviction, this

Court should grant the writ of certiorari and reverse the lower

court.

10

B. Contrary to the Ninth Circuit, This

Court Has Tried to Limit, Not Expand,

the Doctrine of “Public Welfare Offenses”

The Ninth Circuit claims its determination that the Clean

Water Act is “public welfare legislation,” and that such

legislation allows criminal conviction without proof of criminal

intent, is dictated by Supreme Court precedent. But the Ninth

Circuit is wrong. This Court’s decision in Morissette v. United

States, 342 U.S. 246, limits rather than expands the “public

welfare offense” doctrine and undercuts the lower court opinion

here.

In Morissette, the petitioner took some old shell casings

from an Air Force bombing range that he believed were

abandoned scrap. After selling these casings for $84, Morissette

was convicted of “knowingly” stealing and converting govern-

ment property and sentenced to imprisonment for two months

or to pay a fine of $200. The lower court ruled the “knowing”

offense did not require a criminal intent, basing its ruling on the

failure of Congress to express such a requisite and this Court’s

decisions in United States v. Behrman, 258 U.S. 280 (1922),

and United States v. Balint, 258 U.S. 250 (1922), leading to the

so-called “public welfare offenses.” See Morissette, 342 U.S.

at 250.

This Court acknowledged it had, on occasion, construed

mere omission of “any mention of criminal intent as dispensing

with it,” but this Court reversed the lower court in Morissette

pointing out with great care the dangers of a verbatim reading

of its prior cases:

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

1]

preserved, the ancient requirement of a culpable state

of mind. We think a resume of their historical

background is convincing that an effect has been

ascribed to them more comprehensive than was

contemplated and one inconsistent with our

philosophy of criminal law.

Id. at 250.

The Ninth Circuit has adopted the literal reasoning of this

Court’s early precedents to interpret the Clean Water Act and

has ascribed more to the “public welfare offense” doctrine than

was contemplated by this Court. The lower court’s holding that

an apparently innocent act may subject the actor to severe

criminal liability is inconsistent with any fair-minded philosophy

of criminal law and sweeps within its arms a whole array of

federal statutes—particularly those designed for natural resource

protection—that do not expressly preserve a mens rea

requirement. An historical review of the “public welfare

offense” reveals that modern lower courts have both mis-

understood and misapplied the doctrine.

In a 1933 law review article, Francis Bowes Sayre

elucidates the genesis of this doctrine and its almost immediate

subversion. Francis Bowes Sayre, Public Welfare Offenses,

33 Colum. L. Rev. 55, 55-88 (1933). Sayre notes that, before

the middle of the nineteenth century, there was no thought on

the part of American judges of relaxing the general requirement

of a mens rea, even for violations of so-called regulatory

statutes. /d. at 62. For example, in Myers v. State, 1 Conn. 502

(1816), a defendant was convicted for renting out a carriage on

Sunday under a statute making the action a crime “except from

necessity or charity.” This Court reversed the conviction on

grounds the defendant could not be convicted if he believed the

rental was for charity and had no criminal intent.

Unless this construction be adopted, a man may be

convicted of a crime, when he had no intent to

12

violate the law, and when his object was to perform

a deed of curity conformable to the law. This would

oppugn the maxim that a criminal intent is essential

to constitute a _rime.

Sayre, Public Welfare Offenses, 33 Colum L. Rev. at 62.

Sayre reports that this was the law in the United States

down to the middle of the nineteenth century. /d.

By the mid-1840’s, however, things began to change—

decisions appeared holding under certain statutory regulations

mens rea need not be proved. In Barnes v. State, 19 Conn. 398

(1849), decided by the same Connecticut court that allowed the

conviction in Myers v. State, the court held (without supporting

authority) that a defendant could be convicted for selling liquor

to a drunkard even if he didn’t know the buyer was a drunkard.

Similar decisions ensued during the next decade. Sayre, Public

Welfare Offenses, 33 Colum L. Rev. at 63.

By the 1860’s, the doctrine of “public welfare offenses”

became firmly established in Massachusetts relative to liquor and

adulterated milk cases. /d. at 64. In Commonwealth v.

Boynton, 2 Allen 160 (Mass. 1861), the defendant was

convicted for selling an intoxicating liquor although he didn’t

know the beverage he sold was intoxicating. Three years later,

a Massachusetts court cited Boynton for the conviction of a

defendant for selling adulterated milk, although the defendant

was ignorant of the fact. Based on these decisions, the

Massachusetts courts began to extend the doctrine to other

types of police regulations. Sayre, Public Welfare Offenses,

33 Colum L. Rev. at 65. By 1868, the doctrine was widely

recognized in other states. /d. at 66.

Sayre points out, however, that such cases involved:

a social injury so direct and widespread and a penalty

so light that in such exceptional cases courts could

safely override the interests of innocent individual

13

defendants and punish without proof of any guilty

intent.

Id. at 68.

Sayre also points out that the decisions permitting

convictions of such “light police offenses,” generally invoiving

a small fine, without proof of guilty intent came at a time when

the demand of an increasingly complex society required

administrative regulation “unrelated to questions of personal

guilt.” /d. at 67. This is true for ordinary traffic violations, the

shear number of which would bury the courts if the courts were

required to ascertain the intent of the individual in each case. /d.

at 69.

But in recognizing the necessity of “public welfare

offenses” for what Sayre calls “petty violations,” he delivers a

sharp warning: “The group of offenses punishable without

proof of any criminal intent must be sharply limited.” Sayre

believed the sense of justice of the community would not

tolerate the imposition of substantial punishment on the

innocent. /d. at 70. Unfortunately, many of today’s courts, like

the Ninth Circuit in this case, don’t share Sayre’s “sense of

justice.”

Sayre continues with a question that frames the issue quite

nicely in the case at bar:

How then can one determine practically which

offenses do and which do not require a mens rea,

where the statute creating the offense is entirely silent

as to requisite knowledge?

Id. at 72.

Sayre suggests the answer is determined by two principles.

The first relates to the character of the offense and the second

depends on the possible penalty.

14

According to Sayre, crimes designed to single out

wrongdoers for punishment or correction should require a mens

rea, whereas police offenses of a merely regulatory nature may

be enforced without proof of guilty intent. In the present case,

Hanousek’s offense was inadvertent. To single him out for so

severe a punishment or correction, therefore, serves no public

purpose—it neither deters wrongdoing nor reforms guilty

conduct.

With respect to the second principle, Sayre maintains if the

penalty is serious,

particularly if the offense be punishable by

imprisonment, the individual interest of the defendant

weighs too heavily to allow conviction without proof

of a guilty mind. To subject defendants entirely free

from moral blameworthiness to the possibility of

prison sentences is revolting to the community sense

of justice; and no law which violates this fundamental

instinct can long endure. Crimes punishable with

prison sentences, therefore, ordinarily require proof

of a guilty intent.

Id. at 72.

Thus, under the criteria advanced by Sayre, the Clean

Water Act, under which Hanousek was—without guilty

intent—convicted and sentenced to jail, does not qualify as

“public welfare legislation.” To the contrary, to so hold would

be “revolting to the community sense of justice.”

Sayre presented, but did not invent, these two priaciples

for determining when mens rea should be required in a criminal

case. Rather, he inferred them from his exhaustive study of the

actual decisions of the previous half century. Based on this

study, Sayre concludes that “public welfare offenses” have

mainly been cases of a regulatory nature that involve only light

monetary fines rather than imprisonment. /d. at 72. This finding

15

stands in sharp contrast to the substantial fine imposed on

Hanousek of $5,000 and his lengthy sentence of six months in

jail, six months in a half-way house, and six months probation.

Sayre suggests further that “public welfare offenses” are

also characterized by the fact that evidence of the defendant’s

actual state of mind would be difficult, if not impossible, to

obtain or the offenses require enforcement against virtual armies

of offenders for whom discerning state of mind would essentially

prevent adequate enforcement. /d. at 72. In this case, however,

Hanousek’s state of mind was determined by a jury—he had no

criminal intent.

This case is indicative of a growing trend that Sayre

observed decades ago. He notes with alarm an increasing

tendency in the courts to expand the “public welfare offense”

doctrine to impose substantial penalties for innocent conduct,

including imprisonment.

The modern rapid growth of a large body of

offenses punishable without proof of a guilty intent is

marked with real danger. Courts are familiarized

with the pathway to easy convictions by relaxing the

orthodox requirement of a mens rea. The danger is

that in the case of true crimes where the penalty is

severe and the need for ordinary criminal law

safeguards is strong, courts following the false

analogy of the public welfare offenses may now and

again similarly relax the mens rea requirement,

particularly in the case of unpopular crimes, as the

easiest way to secure desired convictions.

Id. at 79.

Sayre’s warning proved prescient but understates the real

danger. As demonstrated by the case at bar and documented by

Gaynor and Bartman, above, today’s courts are following the

false analogy of “public welfare offenses,” not merely “now and

16

again,” but regularly. The lower courts, like the Ninth Circuit

in this case, are abandoning criminal law safeguards, especially

for unpopular “environmental crimes,” and sending ordinary

people to prison for ordinary acts for the expedient of easy

convictions. This is unconscionable.

Even at the writing of his article in 1933, Sayre remarks

that “[ijllustrations of this dangerous tendency are all too

frequent.” /d. at 80. One notable example Sayre gives is the

Supreme Court case of United States v. Balint, supra, relied

upon in part by the Ninth Circuit in this case. In Balint, this

Court held no guilty intent need be proven to convict a person

for selling narcotics in violation of the Anti-Narcotic Act, which

carries a maximum penalty of five years in prison and $2,000

fine or both. Sayre states this decision “goes far” and can be

justified only on the ground of the extreme public disapproval of

selling narcotics.

Indeed, this Court agreed with Sayre that Balint is an

exceptional case. In fact, the Court warns that Balint has been

taken too far by federal officials and does not justify a general

expansion of “public welfare offenses.” To the contrary, Balint

is one of the precedents to which this Court referred in

Morissette when it said:

We think a resume of their historical background is

convincing that an effect has been ascribed to [our

“public welfare offense” cases] more comprehensive

than was contemplated and one inconsistent with our

philosophy of criminal law.

Morissette, 342 U.S. at 250.

This Court’s philosophy of criminal law was clearly and

eloquently stated this way:

The contention that an injury can amount to a

ime only when inflicted by i ages incial

Or transient notion. It is as universal and persistent in

17

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 punish-

ment for a harmful act is almost as instinctive as the

child’s familiar exculpatory “[b}ut 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.

Id. at 250-51.

History demonstrates that the “public welfare offense”

doctrine is a very limited exception to the intent requirement for

criminal cases and does not justify the loose and general rule

adopted by the Ninth Circuit in this case. To stop this dan-

gerous trend, this Court should grant review and overturn the

decision below.

C. Substantial Jail Terms Are Inconsistent

with the “Public Welfare Offense” Doctrine

This Court has expressed grave concerns over the

proliferation of “public welfare offenses.” In Staples v. United

States, 511 U.S. 600 (1994), this Court held that government

must prove that a defendant charged with illegal possession of

a machine gun knew his gun met the statutory definition of a

machine gun. The Court concluded that possession of a gun

(although a deadly device) is innocent conduct and not a “public

welfare offense” authorizing strict criminal liability.

This Court emphasized that “public welfare offenses” have

been recognized by the Supreme Court in only limited

circumstances and chastised the government for ignoring

the particular care we have taken to avoid construing

a Statute to dispense with mens rea where doing so

18

would ‘criminalize a broad range of apparently

innocent conduct.’

Id. at 610 (citing Liparota v. United States, 471 U.S. 419

(1985)).

This Court also pointed out that “public welfare offenses”

are characterized by small penalties that do not gravely damage

an offender’s reputation and notes:

[Cjommentators collecting the early cases have

argued that offenses punishable by imprisonment

cannot be understood to be public welfare offenses,

but must require mens rea. See R. Perkins, Criminal

Law 793-798 (2d ed. 1969) (suggesting that the

penalty should be the starting point in determining

whether a statute describes a public welfare offense);

Sayre . . . (“Crimes punishable with prison sentences

.. . ordinarily require proof of a guilty intent”).

Staples, 511 U.S. at 617.

This Court’s unease with sentencing one to prison for acts

that do not involve a criminal intent is plain to see from these

and other citations. But this Court’s misgivings over the

expanding doctrine of “public welfare legislation” becomes

absolutely acute when the criminal violation amounts to a

felony:

Our characterization of the public welfare

offense . . . hardly seems apt, however, for a crime

that is a felony .... After all, “felony” is . . .‘as bad

a word as you can give to man or thing.”

Id. at 618 (quoting 2 F. Pollock & F. Maitland, History of

English Law 465 (2d ed. 1899)).

19

To put a point on its concern, this Court stated:

Close adherence to the early cases . . . might suggest

that punishing a violation as a felony is simply

incompatible with the theory of the public welfare

offense. In this view, absent a clear statement from

Congress that mens rea is not required, we should

not apply the public welfare offense rationale to

interpret any statute defining a felony offense as

dispensing with mens rea.

Staples, 511 U.S. at 618.

Although this Court did not have to adopt such a definitive

rule to decide Staples, this Court’s sentiment could not have

been clearer—felony penalties are not compatible with the

theory of “public welfare offenses.” This conclusion applies

squarely to this case.

The Clean Water Act provision under which Hanousek

was convicted imposes felony penalties for a second offense.

See 33 U.S.C. § 1319(c\1) (providing misdemeanor penalty for

first time negligent introduction of unpermitted pollutant into

waterway and felony penalty of up to $50,000 per day of

violation and two years in prison for subsequent violations).

Therefore, under the lower court decision in this case, one can

be convicted of a felony for “ordinary” negligence. But under

this Court’s view expressed in Staples, no court should “apply

the public welfare offense rationale to interpret any statute

defining a felony offense as dispensing with mens rea.” Staples,

511 U.S. at 618.

It is no argument to suggest that Hanousek was charged

“only” with a misdemeanor, because it would not change the

interpretation the Ninth Circuit has given the criminal provision

under the Clean Water Act. The court cannot read “ordinary

negligence” into the same provision one time and then read it

out again another time. As this Court explained in Ratzlaf v.

20

United States, 510 U.S. 135 (1994), “[a] term appearing in. . .

a Statutory text is generally read the same way each time it

appears.” /d. at 143.

Given the apprehension this Court has for an expansive

reading of the “public welfare offense” doctrine, this Court

should grant the Petition for Writ of Certiorari and address the

lower court’s overly broad application of that doctrine.

CONCLUSION

Over the past half century, the lower courts have taken

this Court’s acknowledgment of the “public welfare offense”

doctrine in Morissette to extremes, finding criminal even the

most innocuous conduct. Without the intervention of this

Court, the trend will continue at the cost of individual freedom

and liberty—a price too high to pay for prosecutorial

convenience. This Court should grant review and overturn the

lower court decision.

DATED: September, 1999.

Respectfully submitted,

*M. REED HOPPER

*Counsel of Record

ROBIN L. RIVETT

Pacific Legal Foundation

10360 Old Placerville Road

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amicus Curiae

Pacific Legal Foundation