No Mens Rea, No Crime

Washington Supreme Court strikes down the state's strict-liability felony drug possession law as unconstitutional

Apr 29, 2021

Mens rea (law Latin for “guilty mind”) is one of two fundamental elements of any common law crime—the other is the actus reas or “wrongful act” itself. In law, mens rea refers to “the state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime.”1

For example, to commit murder a person must have acted with “malice aforethought,” which is often referred to on TV as “premeditation.” To be guilty of theft, a person must have acted with intent to deprive the victim of property. And so on.

In a joint report, the National Association of Criminal Defense Lawyers and the Heritage Foundation (two organizations that do not often find themselves on the same side of issues), called the mens rea requirement “a core principle of the American system of justice.”2 It ensures that citizens are not “subjected to criminal prosecution and conviction unless they intentionally engage in inherently wrongful conduct or conduct that they know to be unlawful.”

But not all crimes have a mens rea element. Legislatures, including Congress (as the NACDL and Heritage Foundation noted), have increasingly enacted so-called “strict liability” crimes, which do not require proof of any mental state at all. Which is what makes a recent decision out of Washington (the state, not the District) so interesting.

No Tolerance for Drug Possession

At the beginning of this year, Washington was the only state whose felony drug possession statute was a “strict liability” offense, requiring no proof that the defendant knew she possessed a controlled substance. The last other state to have such a statute, North Dakota, amended its law in 1989 to add a “willfulness” element.

As for the defendant here: Shannon Blake’s story began more than four years ago, in 2016, when she was caught up in a police search for stolen vehicles. After she arrived at the jail, an officer discovered a small baggy of methamphetamine in the coin pocket of her jeans. At trial, Blake testified that a friend bought the jeans, that she never used meth, and that she did not know the drugs were in her jeans pocket. Her boyfriend also testified that Blake did not use drugs and had received the jeans from a friend.

But because Washington’s felony possession statute was a strict liability crime, the trial court convicted her without deciding whether Blake knew the drugs were in the jeans pocket. Blake appealed and the Supreme Court of Washington held that the state’s felony possession statute was unconstitutional.

Violative of Due Process

The Court began by noting that “state legislatures have the police power to criminalize and punish much conduct.” But the due process clause limits that power, and “generally bar[s] state legislatures from taking innocent and passive conduct with no criminal intent at all and punishing it as a serious crime.” This, as well as the principle that the existence of “mens rea is the rule, rather than the exception to, the principles of Anglo-American criminal jurisprudence,” are among the “certain personal liberties” protected by the due process clause.

So while a legislature can create pass strict liability statutes to protect the public, the majority explained that lawmakers may not criminalize “essentially innocent” conduct, and especially passive conduct or non-conduct unaccompanied by criminal intent. As support, the Court cited the U.S. Supreme Court’s decision in Lambert v. California,3 which struck down a Los Angeles law that criminalized remaining in the city for more than five days without registering with the city government.

The Supreme Court of Washington went on to say that the guarantee of due process in Washington’s state constitution is even broader than the federal guarantee. In particular, the Court cited cases guaranteeing a “right to be let alone,” that the state may interfere with “only if it is necessary to protect the rights and welfare of others.”

By criminalizing possession without requiring that a defendant know that she was carrying a controlled substance, the majority explained, Washington had criminalized innocent, passive non-conduct. Trafficking drugs is one thing, but the possession statute went far beyond that. By criminalizing unknowing possession, it would make a felon of:

a letter carrier who delivers a package containing unprescribed Adderall; a roommate who is unaware that the person who shares his apartment has hidden illegal drugs in the common areas of the home; a mother who carries a prescription pill bottle in her purse, unaware that the pills have been substituted for illegally obtained drugs by her teenage daughter.

This the state may not do under its police powers.

A Defense is Not Enough

The state argued that, because the Washington courts had (some years before) manufactured an “unwitting possession” affirmative defense, there was no due process problem.4 But the existence of an affirmative defense is irrelevant, the Court said. The right question is whether possession could be criminalized without including a mens rea element. And the answer to that question is no.

Not Malum in Se

The state also listed a parade of horribles that it claimed would follow from striking down the possession law. It claimed that other strict liability offenses, like child rape, would be open to challenge on similar grounds.

Not so, the Court explained. The possession statute was unconstitutional not just because it was a strict liability statute, but also because it criminalized wholly innocent and passive conduct.

Other strict liability crimes, like child rape, would not fit that bill. Unlike passive, unwitting possession, child rape (or other strict liability crimes like practicing law without a license) require actual conduct.

Although it is not mentioned explicitly, the opinion also speaks in language that sounds heavily in the classic distinction between conduct that is malum in se (wrong in itself, or morally wrong) and conduct that is malum prohibitum (wrong because it is forbidden). By repeatedly making reference to “innocent” conduct throughout the opinion, the majority seems to draw a distinction between strict liability offenses that target morally repugnant conduct (like child rape) and those that target otherwise innocent behavior (like unwittingly carrying meth in a coin pocket).

The durability of these distinctions will likely be tested in future cases.

Conclusion

Among other things, this case is powerful evidence of the continued vitality of state constitutions and state supreme courts as engines of change in criminal law and procedure.5 Though they have certainly gone awry in the past—and often badly so—they also often get the law right. The U.S. Supreme Court is not the only avenue for vindicating individual rights.

It has also touched off a debate in Washington about whether to enact a new possession law and—if so—how to frame it. It is a conversation that is part of a national conversation about the wisdom of using criminal laws to fight addiction.

And the decision is a reaffirmation of central criminal law principle: A person who acts wrongly, but unintentionally, may be a tortfeasor, but generally is not a criminal. If other courts follow suit, then mens rea is (and should be) here to stay.

The case is State of Washington v. Blake, No. 96873-0

The majority included Chief Justice González and Justices McCloud (author), Yu, Montoya, and Whitener.

Justice Stephens concurred in part and dissented in part.

Justices Johnson, Madsen, and Owens dissented.

Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.

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