An official misrepresentation of the law occurs when an official, acting as an agent of the state, represents what is legal or not in an erroneous or misleading way. Should reliance on such misrepresentations excuse one from criminal responsibility? American courts presently recognize two official misrepresentation defenses: Entrapment by Estoppel and Public Authority. However, there is disagreement about what constitutes these defenses and what their limits are. Part of the confusion surrounds why these defenses are justified at all, especially given the general principle ignorantia juris non excusat. We propose an answer to this justification question: these defenses are justified because official misrepresentations preclude knowledge of the illegality of the acts in question. It is not simply that someone on the receiving end did not know; they could not know. We develop this account, linking it to due process and fairness, and then use it to clarify Entrapment by Estoppel and Public Authority and argue both should be subject to important restrictions.
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This might apply only to active offenses such as running a red light, rather than passive offenses such as residing in a city without registering as a felon. See Lambert v. California, 355 U.S. 225 (1957).
Oliver Wendell Holmes, Jr., The Common Law, London: Macmillan (1882), pp. 47–48. See also Douglas Husak, Ignorance of the Law: A Philosophical Inquiry, New York: OUP (2016), and Alexander Sarch, Criminally Ignorant: Why the Law Pretends We Know What We Don’t, New York: OUP (2019), Ch. 1.
Raley v. Ohio, 360 U.S. 423 (1959); Cox v. Louisiana, 379 U.S. 559 (1965); U.S. v. PICCO, 411 U.S. 655 (1973).
Paul H. Robinson, “Criminal Law Defenses: A Systematic Analysis,” Columbia Law Review, 82, no. 2 (1982); Sean Connelly, “Bad Advice: The Entrapment by Estoppel Doctrine in Criminal Law,” University of Miami Law Review, 48, no. 627 (1994); John Parry, “Culpability, Mistake, and Official Interpretations of the Law,” American Journal of Criminal Law, 25, no. 1 (1997); Gabriel Chin et al., “The Mistake of Law Defense and an Unconstitutional Provision of the Model Penal Code,” North Carolina Law Review, 93, no. 139 (2014).
See especially U.S. v Duggan, 743 F. 2d 59, 84 (2nd Cir. 1984).One thing to keep in mind is we are only concerned with criminal law. Nothing we say should be construed as carrying over to liability in civil lawsuits.
U.S. v. Barker, 546 F. 2d 940 (D.C. Cir. 1976).In addition, a defendant is also permitted to argue they thought their conduct was permitted by the government or an agent thereof and yet it was not. We discuss this alternative defense, aka the “backdoor” defense, in §4.3.
Department of Justice, Criminal Resource Manual, §2055. Raley v. Ohio, 360 U.S. 423 (1959). Ohio Rev. Code, §101.44. Raley v. Ohio, 360 U.S. 423, 426 (1959). Ibid, 439. Cox v. Louisiana, 379 U.S. 559 (1965). Ibid, 571. U.S. v. PICCO, 411 U.S. 655 (1973). Ibid, 674. U.S. v. Abcasis, 45 F. 3d 39 (2nd Cir. 1995). U.S. v. Browning, 630 F. 2d 694, 702 (10th Cir. 1980). Department of Justice, Criminal Resource Manual, §2055. U.S. v. Barker, 546 F. 2d 940 (D.C. Cir. 1976).Ibid, 955. This is affirmed in U.S. v. Duggan, 743 F. 2d 59 (2nd Cir. 1984), U.S. v. Rosenthal, 793 F. 2d 1214, 1236 (11th Cir. 1986), and U.S. v. Anderson, 872 F. 2d 1508 (11th Cir. 1989).
U.S. v. Barker, 546 F. 2d 940, 957 (D.C. Cir. 1976). U.S. v. PICCO, 411 U.S. 655 (1973). U.S. v. Barker, 546 F. 2d 940 (D.C. Cir. 1976).The dissenting opinion, entered by Judge Leventhal, rejected that this was a legitimate exception to the ignorantia doctrine. His worry was that such an exception would risk a slippery slope in which defendants could be excused from heinous crimes simply because an official gave them permission. This is a sound worry: can official misrepresentation defenses extend to crimes that smack of illegality (mala in se)? We return to this question later.
U.S. v. Duggan, 743 F. 2d 59 (2nd Cir. 1984). Ibid, 84.U.S. v. Rosenthal, 793 F. 2d 1214, 1235 (11th Cir. 1986); U.S. v. Anderson, 872 F. 2d 1508, 1516 (11th Cir. 1989); U.S. v. Burrows, 36 F. 3d 875, 881 (9th Cir. 1994); U.S. v. Alvarado, 808 F. 3d 474, 484 (11th Cir. 2015).
U.S. v. Tallmadge, 829 F. 2d 767 (9th Cir. 1987); U.S. v. Clegg, 846 F. 2d 1221, 1223 (9th Cir. 1988).
U.S. v. Barker, 546 F. 2d 940, 949 (D.C. Cir. 1976), first emphasis added. Ibid, 956. Note, “Applying Estoppel Principles in Criminal Cases,” Yale Law Journal, 78, no. 1056 (1969).John Parry, “Culpability, Mistake, and Official Interpretations of the Law,” American Journal of Criminal Law, 25, no. 1 (1997).
We have omitted U.S. v. Laub (385 U.S. 475 (1967)) from our discussion because it is not clear the Court was treating it as a case of official misrepresentation, rather than a case of vagueness of the law.
Ibid, 46. Ibid, 47. Cf. Gideon Yaffe, “Excusing Mistakes of Law,” Philosophers’ Imprint, 9, no. 2 (2009). Parry, 58.For a similar argument on the military side of the law, see Yoram Dinstein, The Defense of Superior Orders in International Law (1965), repr., A.W. Sijthoff, Oxford University Press (2012). Citations refer to Oxford edition.
Peter Erlinder, “Mens Rea, Due Process and the Supreme Court: Toward a Constitutional Doctrine of Substantive Criminal law,” American Journal of Criminal Law, 9, no. 1 (1981). See also Holmes, ibid, p. 50; Gary V. Dubin, “Mens Rea Reconsidered: A Plea for a Due Process Concept of Criminal Responsibility,” Stanford Law Review, 18, no. 3 (1966); and Arthur Leavens, “Beyond Blame–Mens Rea and Regulatory Crime,” University of Louisville Law Review, 46, no. 1 (2007). The Supreme Court has also embraced this idea over the years: “The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.” U.S. v. Gypsum, 438 U.S. 422 (1978). See also Morissette v. U.S., 342 U.S. 246 (1952), Lambert v. California, 355 U.S. 255 (1957), Staples v. U.S., 511 U.S. 600 (1994).
If you prefer the stronger wording: a state has the right to punish those who violate its criminal laws.
Thanks to an anonymous reviewer for this journal for pressing us to discuss this kind of view.See David Boonin, The Problem of Punishment, New York: Cambridge University Press (2008), pp. 103–119; and also David Dolinko, “Review of Rights Forfeiture and Punishment by Christopher Heath Wellman,” Notre Dame Philosophical Review, URL: https://ndpr.nd.edu/news/rights-forfeiture-and-punishment.
Perhaps the most sustained defense of rights forfeiture is Christopher Heath Wellman, Rights Forfeiture and Punishment, New York: OUP (2017). The book is exclusively concerned with non-state actors. Some of Locke’s writings have also been construed as putting forward a state’s rights forfeiture theory that may be applicable here. For example, Locke might be seen as suggesting that the state gives up its right to punish when it is not “directly useful for the procuring of some greater good,” because “usefulness, when present, being but one of those conditions, cannot give the other, which is a commission to punish.” John Locke, A Second Letter Concerning Toleration, in The Works of John Locke, London: Thomas Davison (1823), p. 112. This interpretation is explored by A. John Simmons, “Locke and the Right to Punish,” Philosophy & Public Affairs, 20, no. 4 (1991). While this line of thinking would help to support the idea that the state forfeits its right to punish in cases of insanity, it is not clear how to extend it to official misrepresentation cases, since it is certainly conceivable that there is some utility in punishing in these cases.
Where does the (restricted) duty to know the law come from? This is a challenging question, one which cannot be answered in full here. Nevertheless, we suggest it comes from the social contract. In being a part of a society, one agrees to follow the society’s rules. That is the fundamental trade-off of living in a society: one trades the freedom to follow their own rules for living together with others in a mutually beneficial social structure. It is this trade that generates the duty to know the social rules (i.e. laws).
Oliver Wendell Holmes, The Common Law, Boston: Little, Brown, and Company (1881), pp. 48. Peter Vranas, “I Ought, Therefore I Can,” Philosophical Studies, 136, no. 2 (2007), p. 171.It may be subject to counterexamples. See David Widerker, “Frankfurt on ‘Ought Implies Can’ and Alternative Possibilities,” Analysis, 51, no. 4 (1991) and Peter Graham, “’Ought’ and Ability,” The Philosophical Review, 120, no. 3 (2011).
For strategies on responding to potential counterexamples to restricted, objective interpretations of Ought-Implies-Can, see Peter Vranas, “I Ought, Therefore I Can,” Philosophical Studies, 136, no. 2 (2007); Vranas, “’Ought’ Implies ‘Can’ but Does Not Imply ‘Must’: An Asymmetry between Becoming Infeasible and Becoming Overridden,” Philosophical Review, 127, no. 4 (2018); and Clayton Littlejohn, “Does ‘Ought’ Still Imply ‘Can’?,” Philosophia, 40, no. 4 (2012).
See in particular Henry John McCloskey, “A Non-Utilitarian Approach to Punishment,” Inquiry, 8, no. 1–4 (1965); Bernard Williams, “A Critique of Utilitarianism,” in Utilitarianism: For and Against, by J.J.C. Smart and B. Williams, Cambridge: Cambridge University Press (1973); and Boonin, ibid, pp. 41–51.
But certainly not all. Being convicted for violation of a strict liability law does not entail a lack of mens rea. It only means judges and juries are not supposed to consider mens rea in deciding whether to convict. We have little doubt that many who have violated such laws possessed mens rea.
See also Douglas Husak, “The Costs to Criminal Theory of Supposing that Intentions are Irrelevant to Permissibility,” Criminal Law and Philosophy, 3, no. 1 (2009). And see Morissette v. U.S., 342 U.S. 246, 250 (1952) and U.S v. Gypsum, 438 U.S. 422, 436 (1978).
Cf. Joseph E. Murphy, “The Duty of the Government to Make the Law Known,” Fordham Law Review, 51, no. 2 (1982).
Brian Tamanaha, On the Rule of Law, London: Cambridge University Press (2004), Ch. 7.“Vagueness doctrine definition,” Cornell University Law School Legal Information Institute. URL: https://www.law.cornell.edu/wex/vagueness_doctrine.
The best expression of this idea can be found in Phillip Pettit, Republicanism, Oxford: OUP (1997). H.L.A. Hart, The Concept of Law, Oxford: OUP (1961), Ch. 3.See John Austin, Lectures on Jurisprudence, Vol. 1, London: John Murray (1880), pp. 237–241 (“I have no doubt that this rule is expedient, or, rather, is absolutely necessary”). Cf. Alexander Sarch, Criminally Ignorant: Why the Law Pretends We Know What We Don’t, New York: OUP (2019), Ch. 5. Sarch is primarily concerned with ignorance of fact, not law, but some of his ideas might carry over.
Cox v. Louisiana, 379 U.S. 559 (1965).Recall that one reason put forward as a problem for the rights forfeiture approach to official misrepresentations is that it seems hard pressed to avoid the conclusion that any official misrepresentation will deprive the state of the right to hold responsible.
U.S. v. Burrows, 36 F.3d 875, 882 (9th Cir. 1994). U.S. Department of Justice, Criminal Resource Manual, §2055. Note, “Applying Estoppel Principles in Criminal Cases,” Yale Law Journal 78, no. 1056 (1969). U.S. v. PICCO, 411 U.S. 655 (1973).Recall the two major premises of our main argument: Holding S responsible for having Xed is fair only if S possessed mens rea in performing X, and S possessed mens rea in performing X only if S knew or should have known that X was out of normative bounds. Thus, holding S responsible for having Xed is fair only if S knew or should have known that X was out of normative bounds. What the present argument seeks to establish is that official misrepresentations of mala in se acts do not entail that it is not the case that S should know these acts are illegal. As we’ll argue shortly, only official misrepresentations of mala prohibita acts entail that it is not the case that S should know of their illegality.
Sean Connelly, “Bad Advice: The Entrapment by Estoppel Doctrine in Criminal Law,” University of Miami Law Review, 48, no. 627 (1994), p. 634.
U.S. v. Gypsum, 438 U.S. 422 (1978). See also American Law Institute, Model Penal Code, §2.05 (1985).
U.S. v. Barker, 546 F. 2d 940, 957 (D.C. Cir. 1976). See also U.S. v. Lansing, 424 F. 2d 225 (9th Cir. 1970); U.S. v. Weitzenhoff, 1 F.3d 1523, 1534 (9th Cir. 1993); U.S. v. Corso, 20 F. 3d 521 (2nd Cir. 1994); U.S. v. George, 386 F.3d 383, 399 (2nd Cir. 2004).
U.S. v. Tallmadge, 829 F. 2d 767 (9th Cir. 1987). See also U.S. v. Clegg, 846 F. 2d 1221 (9th Cir. 1988) and U.S. v. Hsieh Hui Mei Chen, 754 F.2d 817 (9th Cir. 1985).
Tallmadge had also sought advice from his attorney, who testified that he told Tallmadge he could possess a non-concealable weapon.
U.S. v. PICCO, 411 U.S. 655 (1973).U.S. v. Juan, 776 F. 2d 256 (11th Cir. 1985), U.S. v. Anderson, 872 F. 2d 1508 (11th Cir. 1989), U.S. v. Alvarado, 808 F. 3d 474 (11th Cir. 2015), U.S. v. Burrows, 36 F. 3d 875 (9 th Cir. 1994), and U.S. v. Baptista-Rodriguez, 17 F. 3d 1354 (11 th Cir. 1994).
U.S. v. Alvarado, 808 F.3d 474, 486 (11th Cir. 2015).U.S. v. Rosenthal, 793 F. 2d 1214, 1236 (11th Cir. 1986). See also U.S. v. Abcasis, 45 F. 3d 39 (2nd Cir. 1995).
