Tammie Hedges and the Overcriminalization of America

Originally published at National Review by James R. Copland and Rafael A. Mangual| October 11, 2018

Across the country, well-meaning Americans face the threat of prosecution for violating state laws that criminalize unobjectionable behavior.

In the wake of Hurricane Florence, North Carolina prosecutors served Tammie Hedges with a twelve-count criminal indictment. Hedges runs a non-profit group, Crazy’s Claws N Paws, and during the storm she offered both shelter and basic first aid to pets whose evacuating owners could not take them along. Local officials, at the behest of the state’s Department of Agriculture, accused Ms. Hedges of practicing veterinary medicine without a license.

Facing a public outcry, prosecutors have since dropped these charges. But other individuals who find themselves in the state’s prosecutorial crosshairs have had to go to court to vindicate their rights. Among these was another North Carolinian, Steve Cooksey, who in 2012 was accused by the state of the unlicensed practice of dietetics after he blogged about his dietary practices. Cooksey eventually won a challenge before the U.S. Court of Appeals on First Amendment grounds, but Steven Pruner, another North Carolinian, was not so lucky: In 2011, he was sentenced to 45 days of police custody for selling hot dogs without a permit from his food cart outside the Duke University Medical Center.

North Carolina is hardly alone in criminally prosecuting individuals who unknowingly run afoul of picayune regulatory laws with little to no public-health or -safety purpose. An Oklahoma bartender was prosecuted for serving vodkas infused with flavors like bacon and pickles; a Minnesota man was jailed for the crime of not finishing the siding on his own house; and a California mom was prosecuted for selling homemade ceviche through a recipe-exchange group on Facebook.

In every state in the union, well-meaning individuals face the threat of prosecution for violating regulations that criminalize morally unobjectionable behavior. A new Manhattan Institute report we co-authored assesses the state of criminal law across multiple states and finds that unnecessary criminal statutes abound. States’ criminal codes are three to ten times longer than the Model Penal Code promulgated by the august collection of scholars and practitioners at the American Law Institute. More than 77 percent of new crimes are codified outside the criminal code. And a large fraction of state crimes are never voted on by elected representatives, because criminal-lawmaking power is regularly delegated to bureaucrats or even private licensing boards.

Call it “criminalization without representation.”

Some of the criminal regulations we have studied are silly, such as an old South Carolina law promising jail time for the unlicensed practice of fortunetelling. (Exactly how one would license a fortuneteller remains unclear.) Others make some sense — including the veterinary-licensing requirements that ensnared Ms. Hedges. (Dispensing potentially dangerous pharmaceuticals to care for Spot and Fido raises legitimate public-health and -safety concerns.) But the proliferation of criminal laws makes it almost impossible for citizens to know what can land them in handcuffs.

What, then, is to be done? There are various steps states can take to streamline their criminal laws, protect those who unknowingly violate rules, and make lawmakers more accountable.

Legislatures should focus on making their criminal laws easier to follow, as well as on trimming unnecessary, duplicative, and unjust statutes from the books. Earlier this summer, the North Carolina legislature gave its imprimatur to a working group tasked with recodifying the state’s crimes into a comprehensive criminal code. In 2014, Minnesota governor Mark Dayton called the legislature into an “unsession” focused on pruning outmoded laws; more than 1,175 crimes were repealed in the effort. Other states would be wise to follow such examples.

Legislatures should also enact rules that protect individuals who unintentionally violate a rule that does not involve dangerous or onerous conduct. All states should join the 15 that have established a default level of criminal intent that prosecutors must prove to secure a conviction, unless the legislature expressly says otherwise. States should also expand the ability of individuals to assert a “mistake of law” defense if they can show they made a genuine good-faith effort to comply with legal rules.

Finally, legislatures should stop the practice of delegating their criminal-lawmaking authority to unelected officials. Regulatory agencies may be better equipped to draft complex regulatory codes, but there is little excuse for allowing them to unilaterally write rules that can land citizens behind bars.

After all, most individuals and businesses unlucky enough to run afoul of such laws won’t be as lucky as Tammie Hedges, who escaped prosecution largely because her case made national news. If we’re serious about addressing the problem that landed an animal lover in handcuffs, it’s time we started reversing the overcriminalization of America.

— James R. Copland and Rafael A. Mangual are the authors of the recent Manhattan Institute study, Overcriminalizing America: An Overview and Model Legislation for the States.


When Ignorance is an Excellent Excuse

Originally published at National Review by Evan Bernick | 1/13/14

Bouie v. City of Columbia

It’s time for our lawmakers to end overcriminalization.

In the wake of media reports that 40,000 new federal, state, and local laws will go into effect this year, there’s no better time for Americans to revisit the old maxim that “ignorance of the law is no excuse.” An unknown number of these new provisions are criminal laws that can deprive us of our liberty and brand us for life. No ordinary American can be expected to know every law, new and old, on the books, not even every criminal law. Anyone concerned about Americans’ being locked up for innocent behavior should resolve to help end overcriminalization.

Overcriminalization strikes at the heart of our constitutional order. In Bouie v. City of Columbia the U.S. Supreme Court explained the constitutional doctrine of “fair notice,” which holds that a criminal law “must give warning of the conduct it makes a crime.” Traditionally, this requirement was satisfied if (1) the prohibited act was inherently wrongful — such as murder, arson, theft, robbery, or rape — or (2) an individual did something that he or she knew was illegal, even if it was not inherently wrongful.

#ad#In recent years, though, federal, state, and local laws that do not meet either requirement but carry criminal penalties have proliferated. Exacerbating the problem, as noted by Ohio State law professor Joshua Dressler in his comprehensive treatise Understanding Criminal Law, “many modern statutes are exceedingly intricate” and “even a person with a clear moral compass is frequently unable to determine accurately whether conduct is prohibited.” As a result, ordinary Americans can be victimized by laws supposedly designed to protect them.

Some overcriminalization incidents can sound amusing until we remember that they involve real people whose lives can be ruined. Last year police charged 46-year-old Ocean Beach, Calif., resident Juvencio Adame with “defacement, damage and destruction” of public property in excess of $400 — charges that could have resulted in significant prison time. His crime? Trimming shrubbery next to his home. Then there’s 17-year-old Cody Chitwood of Cobb County, Ga. Police charged him with a felony for bringing weapons into a school zone. The “weapons” were fishing knives, and they were in a tackle box in Cody’s truck. Georgia law states that any knife “having a blade of two or more inches” is a weapon, and that anyone who carries a weapon onto school property is by that very act guilty of a crime.

“Ignorance of the law is no excuse”? Spare us.

What should we do about this grave threat to our liberties? We can start by addressing the inadequate mens rea (guilty mind) requirements in our criminal law. Legislators must work to identify and repeal or amend laws with insufficient mens rea requirements, and ensure that no such laws are passed in the future.

Additionally, lawmakers should codify interpretive rules that require courts to read meaningful mens rea requirements into any criminal offenses that lack them (unless Congress makes it clear that it intended to enact a strict-liability offense with no mens rea requirement) and should direct courts to apply any existing mens rea term in a criminal offense to each material element of that offense. Legislators should also codify the “rule of lenity” — a judicial rule of interpretation that requires courts to construe ambiguous criminal laws in favor of the accused.

Finally, legislators need to provide an escape hatch for those who were “rationally ignorant” of the law: a mistake-of-law defense in which a defendant would have the burden of producing evidence that he did not know that his conduct was illegal, nor would a reasonable person in his position have believed that the charged conduct was illegal.

Once upon a time, it made sense to insist that ignorance was no excuse for violating the law. Today, that maxim often sounds like a cruel joke. Let’s work to ensure that people are criminally punished only for wrongdoing, not for ignorance of laws that they had no reason to think existed in the first place.

— Evan Bernick is a visiting fellow in the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.


Heritage Report: Fighting Back Against Over-Criminalization: The Elements of a Mistake of Law Defense

Originally published at The Heritage Foundation by Paul J. Larkin, Jr. | 6/12/13

A myriad of problems are caused today by overcriminalization—the misuse and overuse of criminal law, which ensnares average citizens for committing acts that are not morally blameworthy and that most people would not know are crimes. Punishing someone who is morally blameless is unjust and engenders disrespect for our legal system.

As described in a previous Heritage paper,[1] a mistake of law defense is needed to deal with the drastic transformation of America’s criminal justice system. This Legal Memorandum describes what the elements of that defense should be and why.

The Essential Elements of a Mistake of Law Defense

The mistake of law defense has a simple purpose: to allow a morally blameless individual to avoid conviction. The contours of the defense also are simple: A defendant is entitled to a complete defense if a reasonable person in the defendant’s position would not have believed—and if the defendant himself did not believe—that the charged conduct was illegal. The defendant should have the burden of producing evidence to support this defense and possibly also the burden of persuasion by a preponderance of the evidence.

A Complete Defense. The defense would exonerate a defendant and therefore is similar to an alibi defense or a successful claim of self-defense or defense of another. By contrast, provocation can merely reduce murder to manslaughter, which makes it only a partial defense. A successful mistake of law defense, however, frees a defendant.

Knowledge of the Law. The government ordinarily does not need to prove that a person knew that he was breaking the law. Indeed, the criminal law decided centuries ago that ignorance or a mistake of law was not a defense.[2] But that proposition became law when there were few crimes and every one of them also violated the moral code. Times have changed, and today, a person can unwittingly run afoul of the criminal law without engaging in blameworthy conduct. Indeed, attorney Harvey Silverglate has estimated that there is a risk of that happening to at least some people every day.[3]

The use of the criminal law to enforce a complex regulatory regime creates numerous opportunities for that scenario. The reason is that, by definition, a regulatory program allows the conduct in question to occur; agency rules merely define when, where, and how. Even the lawyers who practice in a regulated industry will not know all of the statutes, rules, and regulations—which makes hopeless the plight of the average person who lacks legal training or ready and inexpensive access to an attorney.

The proposition that a defendant should not be held liable if he or she did not reasonably believe that he or she committed a crime is settled law in the area of tax prosecutions. In order to convict a defendant of willfully violating the tax laws, the government must prove that the defendant violated a known legal duty.[4] Therefore, a defendant who has a reasonable, good faith belief that he properly reported and paid his or her taxes is entitled to be acquitted of tax fraud.

That requirement has not nullified the federal government’s ability to bring tax prosecutions. A mistake of law defense would simply apply that principle in a broader range of cases.

A Reasonable Belief. Not every mistake of law is exculpatory. A defendant who unreasonably believed that his or her conduct was lawful would not be acquitted. For example, a person who erroneously believed that thievery is not a crime would not be entitled to an acquittal.[5] Some conduct is universally deemed immoral and illegal, and no one reasonably could claim ignorance of those rules. Murder, manslaughter, rape, mayhem, robbery, burglary, arson, and larceny were crimes at common law, and they remain crimes under federal and state law.[6]

Moreover, a mistake defense does not require that the precise circumstances previously have been identified as illegal; conduct closely analogous to the above crimes also would be deemed unlawful. The reason for such measured ambiguity is simple: While the public might not be conversant with the details of every criminal offense, everyone certainly knows the general picture.[7]

A person should not need legal training to avoid breaking the law. In fact, any such requirement would defeat its purpose. The Constitution requires that a person have notice of what the criminal law prohibits. Under the void-for-vagueness doctrine, a criminal law is unconstitutional if it “fails to give a person of ordinary intelligence fair notice that his or her contemplated conduct is forbidden by the statute.”[8] The question in that regard, it is important to note, is whether the statute is capable of interpretation by “a person” of common intelligence,[9] not by “a lawyer” of common intelligence. The same standard should apply for a mistake of law defense.

This inquiry should not be difficult for the courts to undertake. The question whether a defendant reasonably believed that his or her conduct was not unlawful should be analyzed from the defendant’s perspective—that is, based on the facts known to him or her at the time. It makes little difference whether the criminal law treats those differences as issues of fact, law, or both. The important question is whether the defendant acted reasonably, not what type of mistake he made.

Moreover, the reasonableness component of this inquiry is not materially different from the one that the courts use when deciding whether the exclusionary rule or qualified immunity doctrine applies in a given case. For example, in the 1980s, the Supreme Court decided that the suppression of relevant evidence and the imposition of damages liability were unnecessary sanctions in cases in which a government official may have acted unconstitutionally but nonetheless acted reasonably.[10] Those inquiries are objective in nature, and the federal courts have been making those judgments without obvious difficulty for more than 30 years.

Anglo–American courts have also developed the law governing defenses to crimes for centuries.[11] Defining the content and contours of a mistake defense is a traditional task for courts. Indeed, courts readily can rely on reason and experience to define a mistake of law defense just as they have relied on those factors in creating a law of privileges under the Federal Rules of Evidence.[12] Furthermore, if Congress concludes that the courts have gone astray, Congress could overturn their decisions or limit the courts’ authority to engage in case-by-case common law decision-making. But the better approach in the first instance is to allow the federal courts to apply a mistake of law defense in the same manner that they always have done for other defenses.

A reasonableness requirement also answers the claim that a mistake of law defense would allow a party to escape liability on the ground that foreign law or custom justified his or her conduct, such as in the case of a so-called honor killing.[13] Any such claim would be unreasonable as a matter of law. Anglo–American law never has recognized such a defense, and there is little that could be said on its behalf. Such a defense invites disregard of the law, even chaos, which is why the courts have uniformly rejected a right to an instruction on jury nullification.[14] That rationale applies here, too. Intertribal retaliation may be accepted elsewhere in the world, but we do not allow feuding between San Francisco and Baltimore fans because the Ravens beat the 49ers in the Super Bowl.

Finally, keep in mind that the defendant also must have believed that his or her conduct was lawful. The purpose of the defense is to exculpate morally blameless parties, not to create a loophole for people who know more law than the average bear. If the jury finds that a defendant knew that his or her conduct was illegal—perhaps the government previously had cited him or her civilly or administratively for the same conduct—the jury would be duty-bound to reject the defense. For example, if a person in fact knows that a particular drum contains hazardous waste and cannot be stored, transported, or disposed of in the same manner as ordinary garbage but engages in one of those actions despite this knowledge, the jury should find that he knew that what he did was illegal.

“Willfulness vs. “Mistake of Law.” A defendant is not required to prove that his or her conduct was legal; the government has the burden to prove that he or she committed a crime.[15] If a statute requires the government to prove that the defendant “willfully” broke the law, the government, as part of that burden, will have to prove that the defendant intentionally flouted a known legal duty. In any such case, there would be no need for the defendant to assert a mistake of law defense because the issue of whether the defendant knew that his conduct violated the law would be litigated in the context of challenging whether the government has met its burden of proof.

The Burden of Production and Proof. In cases in which the government does not have to prove that the defendant acted willfully, however, Congress could decide to recognize a mistake of law defense and place the burden of production and proof on the defendant.[16] In that event, a mistake of law defense would become an issue in a case only if the defendant raises the defense—which a defendant could be required to assert before trial[17]—and also only if he or she presents evidence that is sufficient to allow the trial judge to conclude that a reasonable jury could find in the defendant’s favor on that proof.[18] The government would not be required to disprove a mistake-of-law defense in its case-in-chief, although the government could do so rather than wait for its rebuttal case. If Congress fears that a mistake defense would allow a scallywag to escape justice, it could place the burden of proof on the defendant.[19] If the defendant did not carry his or her burden, the trial judge would not instruct the jury on the defense.[20]


A mistake of law defense should exculpate morally blameless parties without creating a loophole for miscreants. Both goals are attainable by using a reasonableness standard and by allocating the burden of production and proof to the defendant. So applied, a mistake of law defense would be a reasonable addition to the criminal law and would help to ameliorate the serious problems created by overcriminalization.

—Paul J. Larkin, Jr., is a Senior Legal Fellow and Manager of the Overcriminalization Project in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. The discussion in this paper builds on the detailed treatment of the mistake of law defense in Paul J. Larkin, Jr., A Mistake of Law Defense as a Remedy for Overcriminalization, 26 A.B.A.J. Criminal Justice 10 (Spring 2013); Paul J. Larkin, Jr., Public Choice Theory and Overcriminalization, 36 Harv. J.L. & Pub. Pol’y 715, 777–81 (2013); and Edwin Meese III & Paul J. Larkin, Jr., Reconsidering the Mistake of Law Defense, 102 J. Crim. L. & Criminology 725 (2012).


Heritage Report: The Need for the Mistake of Law Defense as a Response to Overcriminalization

Originally published at The Heritage Foundation by Paul J. Larkin Jr. | 4/11/13

By heavily regulating criminal procedure alone but leaving the definition of crimes and offenses almost entirely in the hands of the political process, the Supreme Court has left open only one option to legislators seeking to address the problem of crime: Make more and more conduct criminal. The result in recent decades has been the “overcriminalization” of the law, with thousands of criminal offenses in federal statutes and hundreds of thousands in federal regulations. No person could possibly be expected to know them all or even to know all of those that may apply to his daily activities. Yet the law still clings to the maxim that ignorance of the law is no excuse at a time when some ignorance is inevitable, particularly regarding malum prohibitum offenses, or crimes outside the category of inherently harmful or blameworthy acts.

Mistake of law as a defense to criminal liability deserves a second look. The proposition that a defendant should be able to raise a mistake of law defense to a charge that he committed a malum prohibitum offense sensibly balances society’s strong interest in enforcement of the law and society’s even more powerful interest in not punishing morally blameless parties. Allowing the courts to filter out the phony from legitimate claims of mistake will separate the blameworthy from the blameless and protect the latter.

The cost of making that distinction likely will prove minimal and, in any event, is worth it. Punishing someone who is blameless is unjust, and that cost must be weighed too. However this change is made—whether by the Congress through a revision of the penal code or by the courts through their power to define common law defenses to crimes—it should be done.

The Overcriminalization Problem

The rule against mistake of law as a defense made sense during the development of the English common law, the ancestor of our own common law, hundreds of years ago.[1] There were fewer than a dozen felonies, and they mirrored then-contemporary morality. Murder, rape, and robbery were universally crimes against God in every religious tradition, so everyone knew that such conduct was forbidden. As John Salmond put it, “The common law is in great part nothing more than common honesty and common sense. Therefore although a man may be ignorant that he is breaking the law, he knows very well in most cases that he is breaking the rule of right.”[2]

That no longer is true. There are more than 4,500 federal crimes and potentially more than 300,000 relevant federal implementing regulations.[3] No one could know them all—not a judge, not a lawyer, and certainly not an average citizen untrained in the law. Even the Justice Department failed when it tried to identify every federal crime.[4] In addition, because so many criminal laws outlaw conduct not normally seen as blameworthy, there no longer is an understandable rule of thumb to know what is and is not a crime.[5]

Over the past 125 years, Congress has increasingly used the criminal law to enforce complex regulatory regimes that were adopted in order to protect the economy, industry, and the public from the harms endemic in a modern industrial economy.[6] The combination of regulatory programs and criminal liability, however, creates serious problems unknown to the common law.

Regulatory statutes are written broadly so that agencies have discretion to respond appropriately to new issues and dangers. Implementing regulations are detailed and complex, and they can demand scientific or technical knowledge that the average person lacks.[7] That combination is unhealthy for the criminal justice system. It demands too much to require the average member of the public to be aware of, to know where to look for, and to understand the regulatory statutes and rules on pain of criminal liability for making a mistake.

A fundamental tenet of the criminal law is that the average member of society must be able to understand it.[8] Advance warning of where the line between lawful and illegal conduct lies, or “notice,” is indispensable if the criminal law is to avoid ensnaring blameless parties. The size and complexity of today’s laws, along with the absence of a usable yardstick to guide non-lawyers, mean that morally blameless parties inevitably, but unwittingly, will commit some acts that turn out to be crimes and as a result could wind up in prison. This problem can ruin the lives of average persons.

  • Abner Schoenwetter, for example, spent six years in a federal prison for importing Honduran lobsters that were packed in plastic rather than paper and supposedly violating a Honduran regulation (later declared invalid by the Honduran Attorney General) that made his lobsters marginally too small.)[9]
  • Lawrence Lewis wound up charged with a felony and pleaded guilty to a misdemeanor for following the procedure he had been instructed to use to clean up toilet overflows at a military retirement home, which wound up shunting the refuse into the Potomac River.[10]
  • Finally, the federal government pursued a criminal investigation of the Gibson Guitar Company for importing wood for guitar frets allegedly exported illegally from India and Madagascar in violation of those nations’ laws—which in the case of Madagascar were not even written in English.[11] In other words, the federal government claimed that Gibson was guilty of a federal crime because it did not know the law of a foreign nation.

In none of those cases did the federal government accuse a party of conduct that was inherently evil, or malum in se, such as murder, rape, or robbery. Instead, the government charged Schoenwetter, Lewis, and Gibson with violating regulatory schemes that made certain conduct a crime simply because legislators decided it to be so. Such crimes are called malum prohibitum offenses.[12]

It may be reasonable for the government to employ civil or administrative remedies rather than relying on private tort actions to prevent dangers to the public health or safety. As these cases show, however, using criminal laws to serve those ends can readily lead to a miscarriage of justice. It is unrealistic to expect a law-abiding person to comply with all federal, state, and local criminal laws and nearly impossible to expect people to know the law of a foreign land.

The effect of using the criminal law to enforce a regulatory regime is to require that a person have legal training to avoid criminal liability. Only a lawyer would know where to look to find the relevant statutes and regulations; only a lawyer (and perhaps few of them) would be able confidently to know that he or she understood all of those laws; and only a lawyer could predict with any degree of accuracy how those statutes and regulations would be applied by bureaucrats, prosecutors, and judges to varying factual scenarios. Yet many of the criminal elements of regulatory laws are premised on the unspoken assumption that persons who are subject to regulation are capable of doing these things.

That assumption is unwise as a matter of policy. At the end of the day, it is not just a legal fiction that everyone knows the law today; it is a hallucination.

The Inadequacy of Piecemeal Solutions

One often-aired solution to the overcriminalization problem is for prosecutors to decline to bring charges in cases like the ones described above. Prosecutors have the discretion not to charge a person who may have technically but unknowingly committed a crime, and in many of those instances, resorting to a civil or administrative fine in lieu of a criminal prosecution can fully satisfy the federal government’s need to enforce the law and to compensate those who may have been harmed by the conduct.

The criminal law is the most severe device that any government can use against its citizens. In cases where the conduct and party at issue are not morally blameworthy, the criminal process is too ruinous a weapon for the government to deploy. No one should be forced to rely on prosecutorial discretion to avoid a criminal charge in such a case.

Under our system of government, the public is entitled to be protected by the law rather than forced to rely on the good faith, common sense, and discretion of government officials. A cardinal principle of our legal system is that the law itself should serve to protect individuals from the excesses and mistakes of the government.[13]

The Supreme Court clearly articulated that principle in 1803 in Marbury v. Madison, stating that ours “is a government of laws, and not of men.”[14] We once had a system of law in which people were subject to the discretion of a king, but we clearly rejected that approach more than two centuries ago, adopting a Constitution that stands between the government and the public and that limits the actions that prosecutors may take to those that are enacted through the legislative process set forth in the Constitution.

The Need for a Mistake of Law Defense

To address overcriminalization requires ensuring that the law itself does not trip up unsuspecting parties. The key step is to return the criminal law to its common law focus on blameworthy conduct. To achieve that result, Congress could allow a defendant to raise a mistake of law defense to establish his or her innocence.

Traditionally, Congress has left to the federal courts the responsibility to define defenses such as self-defense, duress, or necessity, or reliance on the opinion of a government official.[15] On occasion, however, Congress itself has taken up the task of defining the elements of a defense. Insanity is one example.[16] Whether defined by Congress or by the federal courts, a mistake of law defense would be a sensible way to deal with the overcriminalization problem that we see today.[17]

Mistake of Law vs. Mistake of Fact. Mistakes can be of fact, of law, or both. A mistake of fact already is a defense to some crimes because it can disprove a necessary mental state to a crime such as theft, which requires proof of the intent to deprive someone else of his or her property. Mistakenly taking your colleague’s umbrella thinking that it was your own—which is a mistake of fact—would not make you a thief.

A mistake of law defense could be used in different but analogous circumstances. For example, a person who reasonably and honestly believed that the wood he imported to make guitars was taken in full compliance with the law of the host nation could use a mistake of law defense to fend off a criminal charge such as the one used against Gibson Guitar.[18]

The common denominator in both cases is that no reasonable person would have known that his actions were a crime. Yet the criminal law currently permits a defendant to raise a mistake of fact defense but denies him the same opportunity if his mistake is legal. In both cases, however, the defendant is morally blameless.

The Current Need. That disparity made sense when the number of statutes in the penal code could be counted on the fingers of two hands and involved conduct that was commonly recognized as wrong. The economy then was agrarian, not industrial. There were no regulatory agencies and no regulations. There were very few crimes, and the courts created the ones that did exist. Congress had not yet preempted this field. But that day is long past and will never return. The penal code now is far larger and far more complex, the setting that gave birth to the common law “ignorance of the law is no excuse” rule has disappeared, and the rationale that “everyone knows the law” has vanished.

Those changes militate in favor of re-examining the merits of a mistake of law defense. In the classic words of Oliver Wendell Holmes, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”[19] If that is so, as it surely is here, it is incumbent on Congress to reconsider the common law’s refusal to recognize a mistake of law defense.

There is a powerful case to be made for that defense today. If no one could reasonably be said to know all of the rules that create criminal liability, it is unreasonable to retain the common law proposition that everyone does know them.[20] Indeed, it is intellectually dishonest for the criminal law to act as if that proposition still is or even could be true today. If a lawyer could not hope to know all of the criminal laws, what hope does an ordinary member of the public have? As the late William Stuntz observed, “Ordinary people do not have the time or training to learn the contents of criminal codes; indeed, even criminal law professors rarely know much about what conduct is and isn’t criminal in their jurisdictions.”[21]

Adults and children alike know the inherent unfairness of being punished for conduct that no one could reasonably have believed was criminal. Past and present prominent legal scholars such as Sir James Fitzjames Stephen, John Austin, Edward Keedy, Jerome Hall, and Wayne LaFave have criticized that proposition as being “an obvious fiction,” “notoriously and ridiculously false,” “absurd,” or “so far-fetched in modern conditions as to be quixotic.”[22] Those criticisms have grown stronger over time[23] Even the Supreme Court of the United States now characterizes the common law rule as a just a “cliché.”[24]

The Law Should Guarantee Fair Notice. Several contemporary legal doctrines support the proposition that a party should not be held liable for conduct that no reasonable person would have thought was a crime. The common law rule of lenity requires that any ambiguity in a criminal statute be resolved in the defendant’s favor on the ground that no one should bear the risk of criminal punishment for misreading an ambiguous law.[25] Likewise, the “void-for-vagueness” doctrine bars the government from prosecuting anyone under a vaguely written criminal law.[26] Like those doctrines, a mistake of law defense recognizes the inherent unfairness of punishing someone for conduct that he or she was unaware had been outlawed.

The rule of lenity and the void-for-vagueness doctrines address the problem of inadequate notice at the retail level, because those doctrines focus on a statute-by-statute basis. A mistake of law defense addresses the problem at the wholesale level. It addresses the problem that there are so many criminal laws that no reasonable person could be expected to know them all. Stanford Law Professor Herbert Packer’s discussion of this point merits reading in full:

If the function of the vagueness doctrine is, as is so often said in the cases, to give the defendant fair warning that his conduct is criminal, then one is led to suppose that some constitutional importance attaches to giving people such warning or at least making such warning available to them. If a man does an act under circumstances that make the act criminal, but he is unaware of those circumstances, surely he has not had fair warning that his conduct is criminal. If “fair warning” is a constitutional requisite in terms of the language of a criminal statute, why is it not also a constitutional requisite so far as the defendant’s state of mind with respect to his activities is concerned? Or, even more to the point, if he is unaware that his conduct is labeled as criminal by a statute, is he not in much the same position as one who is convicted under a statute which is too vague to give “fair warning”? In both cases, the defendant is by hypothesis blameless in that he has acted without advertence or negligent inadvertence to the possibility that his conduct might be criminal. If warning to the prospective defendant is really the thrust of the vagueness doctrine, then it seems inescapable that disturbing questions are raised, not only about so-called strict liability offenses in the criminal law, but about the whole range of criminal liabilities that are upheld despite the defendant’s plea of ignorance of the law.[27]

Like the void-for-vagueness doctrine, the mistake of law defense addresses the problem of inadequate notice—the inability for the average person to know the contours of the law without a lawyer’s guidance.


As Ronald Cass, Dean Emeritus of Boston University School of Law, has observed:

The crux of the case againstignorantia legisthus is embodied in this question: If it is inconsistent with basic notions of fairness to penalize one for an act that, because of the nonexistence, inaccessibility, or vagueness of the law, the actor believed legal when done, why is it fair to punish one who is ignorant of the law for any other reason.[28]

The common law rule that ignorance or mistake of law was not a defense made sense in a time when the criminal laws were few in number and reflected what contemporary morals made clear to all. That state of affairs no longer exists, however, so it is our duty to change the law to reflect the modern state of affairs.

Properly defined and applied, a mistake of law defense would be a valuable addition to the criminal law today. It would exculpate morally blameless parties for conduct that no reasonable person would have thought was a crime. The defense would ensure that no one could be convicted of a crime when criminal liability was unforeseeable. Both the criminal justice system and society would be better off with such a rule in place.—Paul J. Larkin Jr. is a Senior Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. This paper is an abridged version of the detailed treatment of the subject in Edwin Meese III and Paul J. Larkin Jr. Reconsidering the Mistake of Law Defense, 102 J. Crim. L. & Criminology 725 (2012), and Paul J. Larkin Jr. A Mistake of Law Defense as a Remedy for Overcriminalization, 26 A.B.A. J. Crim. Just. ___ (2013) (forthcoming).