Under the Resource Conservation and Recovery Act (“RCRA”) criminal provisions, the mens rea is the “knowing” standard. See 42 U.S.C. § 6928(d). That is, anyone who “knowingly” does the prohibited acts is guilty of a felony.
Originally, administrative police regulations not expressly stating a mens rea element “involving small monetary penalties came to be recognized as a special class of offense for which no mens rea was required.” Sayre, Public Welfare Offenses, 33 Colum. L. Rev. 55, 61 (1933); see generally Morissette v. United States, 342 U.S. 246 (1952). Known as “public welfare offenses,” the “penalties commonly [were] relatively small, and conviction [did] no grave damage an offender’s reputation.” Morissette, at 256.
In recent years, however, RCRA and other similar environmental criminal provisions have also been construed as “public welfare” statutes requiring no mens rea or a lesser mens rea for each element of the crime, even though a “knowing” mens rea is statutorily required to impose criminal culpability. In contrast to its origins, these environmental crimes are felonies punishable by imprisonment and fines. This development traces its beginnings to United States v. Balint, 258 U.S. 250 (1922) and United States v. Dotterweich, 320 U.S. 277 (1943). Both Balint and Dotterweich imposed pure strict criminal liability for violations of the Food and Drug Act and federal drug regulations which did not expressly state a mens rea element and provided only misdemeanor punishment.
Strict criminal liability was extended beyond regulatory misdemeanors in United States v. Freed, 401 U.S. 601 (1971), a case decided under the National Firearms Act (“NFA”). The NFA in Freed also did not expressly state a mens rea requirement. Freed was important, however, because unlike the “public welfare statutes” in Balint and Dotterweich, the NFA at issue in Freed imposed felony penalties rather than misdemeanor penalties. As the federal courts have obviously recognized, the consequences of a felony conviction are much more severe than those of a misdemeanor. United States v. Engler, 806 F.2d 425, 439-41 (3rd Cir. 1986), cert. denied, 107 S. Ct. 1900 (1987). The Freed Court’s rationale was generally that because the “firearms” (specifically hand grenades) regulated under the NFA were obviously dangerous, it could be presumed that a person was aware of regulations requiring that firearms must be registered. Freed, 401 U.S. at 608-9. Under the environmental laws, apparently innocent conduct can and is criminalized. See Liparota v. United States, 471 U.S. 419 (1985) (mens rea necessary as to what the regulation required because to hold otherwise would criminalize apparently innocent conduct).
Freed’s rationale was later applied in United States v. International Minerals Corp., 402 U.S. 558 (1971). In International Minerals, the Court created a distinction stating that, at a minimum, where a “knowing” mens rea is required, a defendant must have knowledge of hazardousness in the general sense of the word, i.e. hazard in fact, before criminal culpability even for misdemeanor crimes dealing with obviously dangerous substances or devices can be imposed. The Court stated: “So far as possession, say, of sulphuric acid is concerned, the requirement of ‘mens rea’ has been made a requirement of the Act as evidenced by the use of the word ‘knowingly.’ A person thinking in good faith that he was shipping distilled water when in fact he was shipping some dangerous acid, would not be covered.” Id. at 563 - 64; accord United States v. Johnson & Towers, 141 F.2d 661 (3rd Cir. 1984), cert. denied, 469 U.S. 1206 (1985) (“at a minimum, the word ‘knowingly’ [in RCRA) . . . must also encompass knowledge that the waste material is hazardous.”); United States v. Greer, 850 F.2d 1447, 1450 (11th Cit. 1986) (court’s jury instruction for violation of RCRA required that defendant knew the chemical waste was “not an innocuous substance like water . . ..”).
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