Intent? We don't need no stinking Intent!

Tomorrow, I'm going to be doing a presentation at the local Bench-Bar conference on the interesting cases of the last year. While prepping yesterday, I reread a case from the Virginia Court of Appeals, Herron v. Commonwealth. In Herron the defendant was arrested and taken to jail. On the way, the officer asked Herron several times if he had drugs and each time Herron said that he did not. Of course, once he got to jail and was searched, Herron had drugs. He was convicted of bringing drugs into a jail.

At trial, and on appeal, Herron argued that he had a right not to incriminate himself when he told the officer he had no drugs and that he didn't have any intent to bring the drugs into the jail because he didn't have any intent to go to jail - he was put in jail against his will.

Personally, I would have handled this in a fairly typical fashion. A standard jury instruction (and case law) in Virginia states that "A person can be inferred to intend the natural consequences of his actions." He doesn't have tell the officer anything, but when he doesn't and ends up in jail with drugs, he intended to go into the jail with the drugs rather than get charged with simple possession by the officer. I think this is a pretty straight forward analysis. However, the Court of Appeals chose a different path.

The Virginia Court of Appeals shoots down the 5th Amendment argument in a manner similar to what I laid out above (you can remain silent, but that doesn't mean you aren't guilty of your acts), but the really interesting part of the decision is about whether Herron had intent to carry the drugs into the jail.

Here the Court of Appeals goes off onto a tangent which I would not have expected from this case. Relying on Esteban v. Commonwealth, from the Virginia Supreme Court, the Court of Appeals states that because this statute was not in the common law and the General Assembly did not write an intent into the statute it is a strict liability criminal statute and Herron's intent is irrelevant.

This is a disturbing trend in Virginia criminal law. Prior to Esteban declaration of criminal law strict liability there was a solid argument based both in case law and statutes that there must be intent in all criminal law statutes. In fact, here's the argument as the Virginia Supreme Court received it in Esteban (a teacher convicted for bringing a pistol to school after she forgot it was in her bag):

At trial, the instruction in issue would have required the Commonwealth to prove that defendant "knew she possessed the firearm." The defendant contends the trial court erred in refusing the instruction because, she argues, mens rea is an element of this statutory offense.

In support of her argument, the defendant refers to Code § 1-10, which provides that the common law of England, "insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly." See Weishaupt v. Commonwealth, 227 Va. 389, 399-400, 315 S.E.2d 847, 852 (1984).

The defendant relies upon the proposition, set forth in Wicks v. Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 755 (1974), that a statute must be "read along with the provisions of the common law, and the latter will be read into the statute unless it clearly appears from express language or by necessary implication that the purpose of the statute was to change the common law." This is because the General Assembly "is presumed to have known and to have had the common law in mind in the enactment of a statute." Id.

Continuing, the defendant relies upon the following statement in Parrish v. Commonwealth, 81 Va. 1, 14 (1884), that "whenever a statute makes any offence [a] felony, it incidentally gives it all the properties of a felony at common law." The defendant points out that the requirement of some mens rea for a crime was deeply embedded in the common law, and that the existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence, citing Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994).

Thus, defendant contends, because the offense charged here is a felony, mens rea must be read into the statute as an element of the offense, even though the statute does not include an express mens rea element.

That is a well thought out, well reasoned, and persuasive argument for the inclusion of intent in every criminal law statute. And yet, despite this smart, cogent argument the Virginia Supreme Court created the strict liability criminal law statute - or at least stated that the General Assembly could do so as long as the crime in question did not have common law roots.

It's a terrible precedent, based upon a shaky line of reasoning. The two primary Virginia cases upon which this was based were Maye v. Commonwealth, JUN72, 213 Va. 48, and Makarov v. Commonwealth, OCT76, VaSC No. 751263. In Maye the VaSC found a statute without an intent element constitutional because:

A claim that a statute on its face contains no requirement of Mens rea or Scienter is no ground for holding the statute unconstitutional since such requirement will be read into the statute by the court when it appears the legislature implicitly intended that it must be proved.

In Makarov the VaSC found a statute unconstitutional because it lacked an intent element, explaining that in Maye:

We upheld the constitutionality of the enactment and decided that a requirement of Mens rea or Scienter should be read into the statute because it appeared the General Assembly 'implicitly intended' that such be proved. 213 Va. at 49, 189 S.E.2d at 351. There, we construed a statute specifically dealing [217 Va. 386] with larceny, a crime which presupposes a Mens rea. But here the statute on its face deals with a naked civil debt and we cannot say the General Assembly implicitly meant to include proof of an intent to defraud as an essential element of the offense.

If you turn your head at the right angle and squint, you can use these cases to reach the result the VaSC reached in Esteban. That is to say, there is no intent required in a criminal offense unless there was an intent required in the offense under the common law as it stood in 1776 (independence from British rule leading to a freezing of the common law). The General Assembly might grace the citizens of Virginia with some sort of intent in any statute it passed after 1776, but nothing keeps the General Assembly from passing a law which states it is illegal to roll over in one's sleep and then arresting us in job lots when we do so while we are unconscious.

But here we come full circle, back to the case we started with, Herron. The Virginia Court of Appeals partially overrules the VaSC's Esteban holding. Recall that in Esteban the VaSC rejected the Commonwealth being required to prove she "knew she possessed the firearm." In Herron the VaApp adopts the "voluntary act" test, even in strict liability crimes:

[E]ven if [a statute] is a strict liability offense, the Commonwealth still must prove that appellant committed a voluntary act. All crimes of affirmative action, even strict liability crimes, require something in the way of a mental element-at least an intention to make the bodily movement which constitutes the act which the crime requires.

That doesn't mesh with the Esteban opinion. If the school teacher did not know she possessed the firearm, she couldn't have intended to do the "voluntary act" of carrying it into the school. Thus the standard for strict liability in the Virginia Supreme Court is absolute strict liability while the standard for strict liability in the Virginia Court of Appeals is a limited strict liability.

I hope that all this nonsense gets overturned some day or that the General Assembly writes a statue requiring intent in each and every criminal offense. But, if we have to have strict liability criminal statutes, I prefer the Court of Appeals' version to that of the Supreme Court.
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