18 U. S. C. §924(c)(1)(A) makes it a federal crime to have a gun on you while committing certain violent or drug-related crimes. There’s a mandatory 5-year minimum sentence just for carrying the gun. If you brandish the gun, it goes up to 7 years. If the gun goes off, it goes up to 10 years.
That’s what happened to Christopher Michael Dean. He was robbing a bank, and had a gun in his hand. He probably had his finger on the trigger like an idiot, because when he reached over a teller to grab money, the gun went off. Nobody got hurt, and it was clearly unintentional. Still, the gun went off, and he got the 10 year minimum for it.
In today’s Supreme Court decision in Dean v. United States, the Court was asked to find that the enhanced 10-year minimum requires some mens rea. Some intent or mental state demonstrating culpability. In a 7-2 decision, however, the Court found that Congress did not impose any such requirement. The majority ruled that this is a crime of strict liability, and so it doesn’t matter whether the defendant meant it to happen or not.
The Court didn’t have a lot of room here. Congress didn’t put anything about mens rea in the statute. It just says you automatically get 10 years “if the firearm is discharged.” It doesn’t say “negligently,” or “knowingly” or “intentionally” or anything like that. It’s written in the passive voice, and nothing else in the statute suggests that Congress meant there to be a mental-state element of this crime.
Dean argued that the law has a progression of ever-harsher penalties. And usually in the law, penalties are increased because of a more culpable mental state. So even though Congress didn’t say it in so many words, they must have intended this 10-year minimum to apply to intentional shootings, as opposed to accidental discharges.
But of course mental state is not the only element that increases culpability. Extra facts can do so as well. Intentionally hitting someone and bruising them is one thing, and intentionally hitting them and killing them is another. Here, bringing a gun to a bank robbery is a bad thing, because there’s a chance it is going to be used, and someone could get hurt. Taking the gun out and waving it around during the heist only increases the chances that someone could get hurt. And even a random shot increases the odds even more. So it makes sense that Congress increased the penalties based on the increased risk to others.
Writing for the majority, Roberts acknowledged that “it is unusual to impose criminal punishment for the consequences of purely accidental conduct.” However, strict liability crimes for unintentional conduct certainly do exist. Statutory rape is the most commonly-cited example. The law doesn’t care whether a man knew his sexual partner was underage, or even if he had every reason to believe that she wasn’t. His mental state does not enter into it, and he goes to jail for a crime he never intended, and never realized he was committing. The law takes the act so seriously that it is deemed indefensible, and so it doesn’t care whether it was committed by mistake. Although they are uncommon, there are plenty of strict liability crimes.
The reason why strict liability crimes are uncommon is alluded to in Dean’s case. When we punish a crime, what we’re really punishing is the offender’s mental state. If someone accidentally trips and stumbles into you, society doesn’t want to punish him. What for? There’s nothing to deter, nothing to retaliate against, nothing to rehabilitate — there was no wrongdoing. But if someone had a duty to be careful with his car, but wasn’t, and his negligence hurt you, then he’s going to be punished a little bit. And if he drove dangerously, with reckless disregard of the danger to others, then he’s going to be punished even more. And if he intentionally ran you over, backed up, and did it again, then he’s going to get the most punishment. Even if the injuries are the same in every case, the more wrongful the offender’s mental state, the more culpable he is, and the more punishment he’s going to get. And if there was no mental state, then there’s really nothing to punish.
The law increases punishment for increased culpability. Increased mens rea certainly means increased culpability.
But that’s not the only factor. In addition to the mens rea element, you have the offender’s actions to consider, as well as the harm that resulted. Increasingly risky actions, with the same mens rea, are increasingly culpable. And increasingly harmful results, with no change in mens rea or actus reus, are also increasingly culpable. Dean’s argument didn’t really seem to grasp this concept.
In his dissent, Justice Stevens made the same mistake that Dean did. Stevens argued that, because of the escalating sentences, Congress must have “intended to provide escalating sentences for increasingly culpable conduct,” and therefore “the discharge provision… applies only to intentional discharges.”
Time for Stevens to bone up on his logic. That syllogism is the same as saying “All men have noses. That person has a nose. Therefore, that person is a man.” It ignores the fact that women also have noses. Here, Stevens ignores the fact that mental state is not the only thing that enhances culpability.
Stevens also would have applied the common-law presumption of mens rea — that if something has been criminalized, there is presumed to be some mental-state element of the crime. Legislatures do often leave out the mens rea element from time to time, and the courts fill it in for them. But that’s only when the statute didn’t otherwise provide a basis for the enhanced culpability. Here, however, Congress did provide a basis for enhanced culpability, in the increased risk to others posed by the actions, regardless of whether those actions were intentional.
Breyer also dissented, based on the Rule of Lenity. He felt that the word “discharge” should be interpreted as meaning “firing,” which implies active use of the weapon, and therefore implies some kind of intent. But he conceded that the majority opinion had equally strong arguments for reading this as a strict liability crime. Given these competing interpretations, the Rule of Lenity would have the Court err on the side of the defendant.
However, just because a contrary position can be articulated, that does not mean that interpretation is necessarily ambiguous. The Rule of Lenity is only applicable when the statute is so ambiguous that it didn’t give fair warning of what could happen to you if you violated it. Here, according to the majority, there was no such ambiguity. The statute simply didn’t contain a mens rea element, and it didn’t imply one, and that fact is not grievously uncertain, and so the Rule of Lenity doesn’t apply.
So don’t rob banks. But if you do, don’t bring a gun along. But if you do, don’t wave it around. But if you do, keep your finger off the trigger. Because if it goes off by accident, you’re in big trouble.