Disproportionate Rationale

I blogged previously about the mental culpability element in criminal law here, 11/14/2009; here, 11/16/2009, here, 11/17/2009; here, 11/18/2009; here, 11/19/2009; and here, 11/20/2009. These posts traced the direction of criminal law with respect to the mental culpability element based on both precedent and legislative reform. Recently, however, a decision of the New Jersey Superior Court Appellate Division rejected all this.

In State v. Pierce Bryant, the Appellate Division construed N.J.S.A. 2C:24-4(a), Endangering the Welfare of a Child. This statute makes it a third degree crime for any person who engages in sexual conduct which would impair or debauch the morals of a child under the age of 16. Conviction carries a state prison term of between three years and five years. N.J.S.A. 2C:43-6(a)(3).

NEW JERSEY CODE OF CRIMINAL JUSTICE, modeled after the culpability and gap-filling provisions in MODEL PENAL CODE § 2.02(2)-(3)(1962) ("MPC"), requires proof of mental culpability as to each material element of a crime, and requires proof of mentally culpable knowledge for provisions that do not state the mental culpability element. N.J.S.A. 2C:2-2(c). Mentally culpable knowledge, in short, is awareness of what one is doing. N.J.S.A. 2C:2-2(b)(2). Notably, the Child Endangerment statute is silent with respect to the element of mental culpability.

The issue presented in State v. Pierce Bryant is whether the statute requires evidence of knowledge with respect to all material elements that define the crime. The defense argued the statute required proof that a defendant (1) knowingly engaged in sexual conduct, and (2) knowingly impaired or debauched the morals of a child under the age of 16. The Appellate Division held the statute only required proof that the individual knowingly engaged in sexual conduct. The statute, according to the appellate division, did not require proof that the accused knowingly impaired or debauched the child's morals.

The panel considered the legislative history of the Child Endangerment statute. Prior to N.J.S.A. 2C:24-4a, New Jersey Law made it a crime for any person to force or induce any child under the age of sixteen years to do or to submit to the doing of any act which either tends to debauch or tends to impair the morals of such child. N.J.S.A. 2A:96-3. Unlike the modern statute, its predecessor was not defined with an element of mental culpability.

Legislative evidence from approximately eight years before the enactment of 2C:24-4a suggested the modern statute was intended to incorporate 2A:96-3. The same evidence, recorded just shy of a decade before its enactment, suggested the new statute was only intended to change the penalty provisions.

Title 2A crimes were classified as either "misdemeanors" or "high misdemeanors." Misdemeanors were punishable by either a maximum fine of $1,000.00, or by imprisonment of not more than three years, or both. N.J.S.A. 2A:85-7. High misdemeanors, however, were punishable by a maximum fine of $2,000.00, or by imprisonment of not more than seven years, or both. N.J.S.A. 2A:85-6. The provision in N.J.S.A. 2A:96-3, the forerunner to the modern Child Endangerment statute, was a misdemeanor.

Today New Jersey Law classifies crimes into four degrees: crimes of the first degree, the second degree, the third degree, and the fourth degree. The sentences reflect the seriousness of each classification, with first degree crimes being the most serious and fourth degree crimes being the least serious.

State v. Pierce Bryant involved the third degree child endangerment crime. As indicated above, third degree crimes carry a New Jersey State Prison sentence ordinarily between three years and five years. N.J.S.A. 2C:43-6(a)(3). Therefore, the sentencing exposure pursuant to the modern statute is two years greater than the exposure under the predecessor statute.

This enhanced exposure resulted from 1992 legislative amendments. Prior to 1992, this was a fourth degree offense, carrying a maximum sentence of 18 months state prison. The 1992 Amendment enhanced the sentencing exposure by a multiple of about three and one-third. This was one of many legislative initiatives to increase the protection of children against sexual exploitation.

Greater sentencing exposure is not the only difference. With the enactment of the modern statute, the legislature expanded the scope of proscribed conduct by removing certain elements from the definition of the crime. This, as indicated above, was intended to protect children from sexual exploitation.

The modern Child Endangerment statute does not require proof either of forcing or inducing the child. Thus, the legislature effectively criminalized more conduct. And legislative evidence clearly demonstrates expanding the scope of the Child Endangerment statute in order to protect children was legislature's specific intent. The legislature wanted to protect children from sexual exploitation. As the branch of government that represents the will of the people, this policy is clearly understandable.

The legislative policy of expanding the protection of children from exploitation manifested in crimes enacted against videotaping children in pornographic situations (1983), possessing or viewing child pornography (1992), and pornographic depictions of children in video games (1995).

Additionally, in 1989 the limitation period was expanded from two years to five years from one's eighteenth birthday, expanding the time to file a criminal complaint. In 1994, legislature enacted the "discovery" rule, further extending the limitations period.

The Appellate Panel correctly interpreted this to mean that the legislature had consistently acted to strengthen the statute, broaden its reach, and toughen the penalties.

But this evidence should not have lead to the conclusion that the Statute does not require proof that a person charged with this offense knew his conduct would impair or debauch the child's morals. This is because the Court is not bound only by legislative intent. Criminal law developed in the courts. The posts I linked in the first paragraph demonstrate this is its origin.

Compare State v. Pierce Bryant with B v. DPP. B v. DPP is taught to all first year law students. Therefore, it is fair to presume it is known to lawyers and judges who have gone before me in this field. B v. DPP is a hallmark in the development of criminal common law. Although it may not be mandatory authority, American Law is of Anglo-Saxon origin. Therefore, B v. DPP should not be dismissed out of hand.

The statute in B v. DPP was substantially similar to the statue in State v. Pierce Bryant. The English statute made it a crime for any person to commit an ‎act of gross indecency with or towards a child under the age of fourteen, or to incite a child ‎under that age to such an act with him or another. Originally the statute exposed an accused to a fine not exceeding one hundred pounds, imprisonment not exceeding two years, or both.

In B v. DPP, the House of Lords acknowledged the statute did not expressly state an element of mental culpability. This statutory silence in the British statute is similar to the plain language of N.J.S.A. 2A:96-3 and N.J.S.A. 2C:24-4(a). Lord Nicholls invoked the common law rule requiring an element of mental culpability unless the statute expressly stated otherwise.

Although American Law derives has Anglo-Saxon origins, and criminal law is no exception, the New Jersey Appellate Division interpreted N.J.S.A. 2C:2-2(c)(3) contrary to the common law rule cited in B v. DPP.

Lord Nicholls reasoned the government's burden of proof was not only for each material element expressly stated in ‎the statute, but also the commission of each element with the requisite mental culpability. The court in State v. Pierce Bryant, however, reasoned the government should not shoulder this burden.

Importantly, Lord Nicholls considered the seriousness of the offense in B v. DPP. The seriousness was measured by the sentencing exposure. A conviction for a serious offense required more than just proof of moral blameworthiness. Statutory amendments had expanded the sentencing exposure from two years to ten years prison. In order to be proportionate with the penalty, the law necessarily had to impose greater burdens on the Crown.

In State v. Pierce Bryant, the Appellate Panel considered all the legislative evidence of the increased seriousness of the offense. As described above, the New Jersey legislature expanded this offense in furtherance of its policy to protect children from sexual exploitation. Despite this, the Appellate Division reached an outcome that is disproportionate with the seriousness of the offense. Instead of imposing greater burdens on the State, the Court reduced the burden.

For all these reasons, the Appellate Division holding and reasoning in State v. Pierce Bryant are questionable. One may speculate whether the Supreme Court of New Jersey will grant certification. Unless and until that happens, this statute allows courts to impose penalties that are not proportionate with the evidence that the State should have to prove in court.