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State v. Hazelwood (10/3/97), 946 P 2d 875
NOTICE: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Supreme Court No. S-7602
Petitioner, ) Court of Appeals No. A-3452
) Superior Court Nos.
v. ) 3AN-S89-7217 Cr. and
) 3AN-S89-7218 Cr.
JOSEPH J. HAZELWOOD, )
) O P I N I O N
______________________________) [No. 4891 - October 3, 1997]
Petition for Hearing from the Court of Appeals
of the State of Alaska, on appeal from the Superior Court, Third
Judicial District, Anchorage, Karl S. Johnstone, Judge.
Appearances: Eric A. Johnson, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, Bruce M. Botelho, Attorney General, Juneau, for
Petitioner. James H. McComas, Counsel to Friedman, Rubin and
White, Anchorage, and Richard H. Friedman, Friedman, Rubin and
White, Anchorage, for Respondent.
Before: Compton, Chief Justice, Rabinowitz,
and Matthews, Justices. [Eastaugh and Fabe, Justices, not
COMPTON, Chief Justice, dissenting.
In this petition we are called upon to decide whether due
process under Alaska's Constitution requires that a criminal
offense be predicated on proof of more than just simple civil
II. FACTS AND PROCEEDINGS
Respondent's conviction stems from the Exxon Valdez
incident. On March 24, 1989, Captain Joseph Hazelwood ran his ship
aground off Bligh Reef and reported he was "evidently leaking some
oil." Eventually, eleven million gallons poured into Prince
William Sound. A jury subsequently convicted Hazelwood of
negligent discharge of oil.
The Court of Appeals reversed Hazelwood's conviction on
the basis that some of the evidence admitted at trial had been
derived from Hazelwood's immunized oil spill report. The court
held that these statements could not have been admitted even if
they would inevitably have been discovered from an independent
source. Hazelwood v. State, 836 P.2d 943 (Alaska App. 1992). This
Court reversed, holding that the inevitable discovery doctrine does
apply to the immunity created by 33 U.S.C. sec. 1321(b)(5) for oil
spill reports. State v. Hazelwood, 866 P.2d 827, 834 (Alaska
On remand, the Court of Appeals again reversed
Hazelwood's conviction. This time it held that Hazelwood should
have been tried under a criminal negligence theory rather than the
civil negligence standard of culpability. The court ruled that
criminal convictions may be predicated on findings of simple or
ordinary negligence only when the offense involves a heavily
regulated commercial activity. Hazelwood v. State, 912 P.2d 1266,
1279 (Alaska App. 1996). Since the application of former
AS 46.03.790 is not restricted to heavily regulated industries, the
Court of Appeals concluded that Hazelwood's conviction under a
civil negligence standard was a denial of due process. We granted
the state's petition for hearing and now reverse.
The difference between criminal and civil negligence
although not major is distinct. Under both standards, a person
acts "negligently"when he fails to perceive a substantial and
unjustifiable risk that a particular result will occur.
The two tests part ways in their descriptions of the
relevant unobserved risk. Under ordinary negligence, "the risk
must be of such a nature and degree that the failure to perceive it
constitutes a deviation from the standard of care that a reasonable
person would observe in the situation." Id. at 1278. Criminal
negligence requires a greater risk. This standard is met only when
the risk is
of such a nature and degree that the failure
to perceive it constitutes a gross deviation from the standard of
care that a reasonable person would observe in the situation.
Criminal negligence is something more than the slight degree of
negligence necessary to support a civil action for damages and is
negligence of a degree so gross as to be deserving of punishment.
Id. at 1278-79 n.16 (emphasis added).
In essence, then, the criminal negligence standard
requires the jury to find negligence so gross as to merit not just
damages but also punishment. It does not spill over into
recklessness; there is still no requirement that the defendant
actually be aware of the risk of harm. However, criminal
negligence does require a more culpable mental state than simple,
ordinary negligence. [Fn. 1]
The statute under which Hazelwood was convicted provides
in relevant part:
A person may not discharge, cause to be
discharged, or permit the discharge of petroleum . . . into, or
upon the waters or land of the state except in quantities, and at
times and locations or under circumstances and conditions as the
department may by regulation permit . . . .
Former AS 46.03.790(a) (current AS 46.03.740). At the time of the
alleged crime, a person who "negligently"violated this provision
was guilty of a class B misdemeanor. Id. [Fn. 2]
The Court of Appeals concluded that the unadorned use of
the word "negligently"created an ambiguity as to whether the
statute rests on criminal or ordinary negligence. Relying on its
past decisions, the court held that criminal liability may be
imposed on the basis of simple or ordinary negligence "only for
offenses dealing with heavily regulated activities for which
permits or licenses are required." Hazelwood, 912 P.2d at 1279
(quoting Cole v. State, 828 P.2d 175, 178 (Alaska App. 1992)). [Fn.
In defense of the Court of Appeals' ruling, Hazelwood
presents two lines of argument. First, he contends the guarantee
of due process demands that criminal penalties be predicated on
more than just ordinary negligence. He reads our precedents as
requiring a mens rea of at least reckless culpability for criminal
offenses. Second, Hazelwood maintains that the statute under which
he was convicted itself incorporates the criminal negligence
standard. We address each argument in turn.
A. Due Process and a Civil Negligence Mens Rea Standard
1. Alaska law
Hazelwood grounds his due process claim in our decisions
in Hentzner v. State, 613 P.2d 821 (Alaska 1980); Kimoktoak v.
State, 584 P.2d 25 (Alaska 1978); Alex v. State, 484 P.2d 677
(Alaska 1971); and Speidel v. State, 460 P.2d 77 (Alaska 1969). He
contends that in each of these cases we required a showing of
recklessness, or subjective awareness of wrongdoing, in order to
sustain the criminal conviction.
These decisions stand for a common proposition: that
criminal convictions must be predicated on criminal intent. [Fn. 4]
In other words, there must be some level of mental culpability on
the part of the defendant. However, this principle does not
preclude a civil negligence standard. What it does mean is that we
will generally read into a criminal statute some level of mens rea,
"as opposed to strict criminal liability." Alex, 484 P.2d at 681
(emphasis added); see also Kimoktoak, 584 P.2d at 29. It is strict
liability, and not the negligence standard, which "is an exception
to the rule which requires criminal intent." State v. Rice, 626
P.2d 104, 108 (Alaska 1981). The requirement of criminal intent
does "not emphasize a specific awareness of wrongfulness." Alex,
484 P.2d at 681. [Fn. 5]
The point is illustrated by State v. Guest, 583 P.2d 836
(Alaska 1978), and Rice, 626 P.2d at 104. In each case, we upheld
the imposition of criminal sanctions on the basis of simple,
ordinary negligence. Guest approved the Superior Court's
instruction that the defendant was not guilty of statutory rape if
he reasonably believed his victim was of consenting age. In
effect, we sustained prosecution on charges that the defendant was
negligent as to the victim's age. See Guest, 583 P.2d at 839 n.5
(quoting Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law sec.
at 356-57 (1972)). Similarly, Rice read into a criminal
prohibition on transportation of illegally taken game a requirement
that the defendant was at least negligent as to the fact the game
was illegally taken. See Rice, 626 P.2d at 110. In both cases, a
mens rea of simple or ordinary negligence was made the basis of the
2. Hazelwood's conduct/circumstances distinction
Hazelwood distinguishes Rice and Guest on the ground that
in each the negligence standard was applied only to the circum-
stances of the crime, not the underlying conduct. Due process, he
maintains, still requires the government to demonstrate there was
"volitional conduct of the prohibited act."
Hazelwood's conduct/circumstances distinction is unten-
able. As an initial matter, we note that nowhere do our due
process precedents differentiate between the minimum mens rea for
circumstances and conduct. Nor is there any reason to do so. In
many cases, it is only the circumstances of the offense that render
it objectionable. No one would suggest, for example, that Rice's
transportation of game would still have been criminally
sanctionable had it not been taken illegally. The statute
proscribes the underlying conduct only when the relevant
circumstance is present. The same was true in Guest. Indeed, in
both cases, had we not applied a negligence standard to the
circumstance of the offense, it would have included no mens rea
We think Hazelwood confuses volition with intent. While
many crimes do not require that their underlying action be carried
out with a guilty mind, it is always a defense to prosecution that
the conduct was not voluntary. In every case, the alleged
infraction must have been the product of a free will, and not
coercion, duress, or mental illness. Had terrorists boarded the
Exxon Valdez, for example, and demanded that Hazelwood run his
vessel onto Bligh Reef, the fact that he did so even with knowledge
and purpose would be irrelevant. He could defend on the basis that
his act was not voluntary, and thus could not be properly
attributed to him. This is not the case here. Hazelwood faced no
compulsion that would excuse his conduct at the time the Exxon
Valdez rammed into Bligh Reef. While there is a voluntariness
element to every criminal offense, because Hazelwood's commissions
were his and his alone, this prerequisite is satisfied here. [Fn.
As noted above, it is firmly established in our
jurisprudence that a mental state of simple or ordinary negligence
can support a criminal conviction. Further decisions reveal,
however, that in some situations more will be required, and
sometimes less. Speidel, 460 P.2d at 80, found a denial of due
process where the defendant had been convicted of "simple
neglectful or negligent failure to return a rented automobile." In
that case, we insisted on at least a finding of reckless
culpability in order for criminal sanctions to be imposed.
On the other hand, elsewhere we have allowed the mens rea
element to be dispensed with entirely. We have allowed strict
liability to be read into "public welfare offenses." See, e.g.,
Rice, 626 P.2d at 107. These public welfare offenses are
proscriptions which "heighten the duties of those in control of
particular industries, trades, properties or activities that affect
public health, safety or welfare." Morissette v. United States,
342 U.S. 246, 254 (1952). See also Haxforth v. Idaho, 786 P.2d
580, 582 (Idaho App. 1990) (four-part test). As a corollary, a
mens rea requirement is imputed only when a serious penalty
attaches. See Guest, 583 P.2d at 838; Kimoktoak, 584 P.2d at 29;
and Speidel, 460 P.2d at 80; see also Michigan v. Olson, 448 N.W.2d
845, 847 (Mich. App. 1989). Also, no mental element will be
required when a statute provides "clear legislative intent to the
contrary." Rice, 626 P.2d at 108; see also Lambert v. California,
355 U.S. 225, 228 (1957) ("There is wide latitude in the lawmakers
to declare an offense and to exclude elements of knowledge and
diligence from its definition."); cf. Gregory v. State, 717 P.2d
428, 430 (Alaska App. 1986).
An explanation of why the simple or ordinary negligence
standard is nevertheless appropriate in this case requires
consideration of the reasons that variable levels of mens rea will
satisfy due process for different offenses.
3. The strict liability tradition
The rule that a criminal offense exists at the
intersection of a guilty act and a guilty mind is commonly viewed
as the bedrock of criminal common law. Over two centuries ago,
Blackstone wrote, "[T]o constitute a crime against human laws,
there must first be a vicious will, and secondly an unlawful act
consequent upon such a vicious will." 4 Comm. 21. A century and
a half later Bishop affirmed: "There can be no crime large or
small without an evil mind." 1 Bishop, Criminal Law (9th ed. 1930)
sec. 287. [Fn. 7]
Yet throughout our common law history, a parallel
tradition has allowed imposition of penalties without formal proof
of criminal intent. An early version of strict liability, the law
of deodands, has been traced back to early Western history. A
deodand was an object that was forfeited to the Crown for directly
or indirectly causing the death of a human being. See generally,
Oliver Wendell Holmes, Jr., The Common Law 24-25 (1881). The
original reasoning was that the instrument itself was guilty of the
Although the deodand form was abolished in England in
1846, 9 & 19 Vict c.62, and never was incorporated into the
American common law, see Parker-Harris Co. v. Tate, 188 S.W. 54
(Tenn. 1916), its substance survives in contemporary in rem
proceedings. The object itself, rather than its human owner, is
formally charged. See, e.g., One 1958 Plymouth Sedan v. Pennsyl-
vania, 380 U.S. 693 (1965); United States v. 43 Gallons of Whiskey,
93 U.S. 188 (1876); United States v. 1960 Bags of Coffee, 12 U.S.
398 (1814). The Supreme Court of the United States has recently
affirmed that proof of the moral culpability of the owner is not a
necessary predicate to these punitive forfeitures. See
Bennis v. Michigan, 116 S. Ct. 994 (1996). Bennis upheld a
modern-day deodand of sorts, allowing the state to seize and forfeit an
automobile without any showing that the owner knew her husband
might use the vehicle to solicit prostitutes. Id.
In the same year the deodand rule was repealed in
England, a new practice began to develop in its place on both sides
of the Atlantic. In Regina v. Woodrow, 15 M. & M. 404 (Exch.
1846), the Court of Exchequer allowed the imposition of a 200 fine
on a tobacco dealer for possession of adulterated tobacco, without
evidence the dealer "had knowledge or cause to suspect"the
product's condition. Per Pollock, C.B., at 415, 416. The case was
reaffirmed in Regina v. Stephens, L.R. 1 Q.B. 702 (1886). The
Court accepted that a new class of offenses without a mens rea
element had come into being. While many of these statutes were a
product of technological change [Fn. 8] or modern sensibilities,
[Fn. 9] and thus had no common law antecedent, others overlaid old
crimes which had once included an intent element. [Fn. 10] The
Court summed up the development in Cundy v. LeCocq, L.R. 13 Q.B.D.
In old time, and as applicable to the common
law or to earlier statutes the maxim [that in every criminal
offense there must be a guilty mind] may have been of general
application; but a difference has arisen owing to the greater
precision of modern statutes. It is impossible now . . . to apply
the maxim generally to all statutes, and the substance of all the
reported cases is that it is necessary to look at the object of
each Act that is under consideration to see whether and how far
knowledge is of the essence of the offence created.
Id. at 210 (Stephen, J.) (upholding strict liability conviction for
selling alcohol to an intoxicated person).
On this shore, courts also began to allow penalties for
certain offenses without proof of intent during this era. The
practice first took root in Massachusetts, apparently quite
independently of the English cases, and spread quickly from there.
[Fn. 11] Again, crimes which had recently required criminal intent
could now be punished without it. [Fn. 12]
4. Theories of strict liability
Over the years, several authorities have attempted to
define the appropriate role and scope of the strict liability
offense. In 1933, Professor Sayre catalogued all such crimes
appearing in reports. His classifications include sales of alcohol
to minors, alcoholics, Indians, soldiers, students and slaves;
sales of impure foods, particularly milk and butter; sales of
misbranded articles; and various automobile and traffic
regulations. See Sayre, supra n.11, at 84-87. However, Professor
Sayre was unable to avoid employing the broad categories of
"Criminal Nuisances"and "General Police Regulations for the
Safety, Health or Well-Being of the Community." He recommends that
strict liability crimes be enforced with light penalties, though he
concedes this limit has not been followed. Id. at 72, 79-82. He
concludes with the generality that the abandonment of mens rea is
suited to situations where the need for social order outweighs the
need for individualized punishment. [Fn. 13] Id.
Some jurisdictions differentiate between offenses that
are mala in se and mala prohibita, allowing strict liability only
for the latter. See Sayre, supra n.11, at 70 n.55. Although this
court has relied on this difference, these other jurisdictions'
decisions are of little guidance to us, as we have drawn the
opposite conclusion from the distinction. See Hentzner, 613 P.2d
at 826 (separate intent element not necessary for offenses that are
mala in se).
Generally, those courts that dispense with criminal
intent for crimes that are mala prohibita, that is, not patently
immoral, have followed the rationale that the legislature did not
intend these new offenses to carry a mental element. The very
meaning of malum prohibitum is that it is wrong because it is
prohibited. Common law crimes, which by their nature are wrongful,
require scienter because moral culpability is inherent to the
offense. The courts have reasoned, however, that when conduct is
penalized only because of a legislative command, then the nature of
the proscription derives solely from that mandate. If the statute
did not include a mental element, then the crime was not meant to
The malum in se/malum prohibitum distinction overlaps
with another theme in this area, that of deference to legislative
direction. Courts routinely hold that whether scienter is an
element of a charged offense "is a question of legislative intent
to be construed by the Court." United States v. Balint, 258 U.S.
250, 252 (1922). Even Morissette concedes that the concerns raised
by the exclusion of mens rea "would not justify judicial disregard
of a clear command to that effect from Congress." Morissette, 342
U.S. at 254 n.14. Compare State v. Rice, 626 P.2d 104, 108 (Alaska
1981). Since, by its terms, the malum prohibitum offense is a
creature of statute rather than common law, it is here that courts
will most often defer to legislative intent.
Although widely accepted, the mala in se and legislative
discretion approaches in our view remain unsatisfactory. We note
that even crimes which had traditionally required proof of criminal
intent have been recharacterized as strict liability crimes. See,
e.g., McCutcheon, 69 Ill. at 601; Baltimore & Susqu. Steam Co., 13
Md. at 186. Nevertheless, we reject any rule that grants the
legislature unbridled discretion to impose strict liability crimes.
An exception to the mens rea requirement for "clear legislative
intent to the contrary"has the potential to swallow the rule. As
we said in Speidel, even where a statute is explicit, due process
will on occasion require a higher degree of culpability. 460 P.2d
at 80 (replacing the negligence threshold of AS 28.35.026 with a
5. The principle of reasonable deterrence
An appropriate place to begin an explanation for
objective fault crimes [Fn. 14] is with the objections of those who
would abolish them altogether. In Jerome Hall, Negligent Behavior
Should Be Excluded from Penal Liability, 63 Colo. L. Rev. 632
(1963), Professor Hall challenges the alleged utility of sanctions
based on negligence and strict liability. He contends crimes that
are not based on subjective awareness of wrongdoing are, by their
terms, not addressed to "the extremely important degree of
individual freedom, autonomy, and awareness . . . expressed in
(voluntary) action by a normal adult." Id. at 637. Merely
negligent harm doers, contends Professor Hall, "have not in the
least thought of their duty, their dangerous behavior, or any
sanction." Id. at 641 (footnote omitted).
The difficulty with this thesis is that it assumes legal
regulations can operate only through the offender's conscious
reason. A rebuttal is supplied by Professor Hart:
the connexion between the threat of punishment
and subsequent good behavior is not [always] of the rationalistic
kind pictured in the guiding-type of case. The threat of
punishment is something which causes [the offender] to exert his
faculties, rather than something which enters as a reason for
conforming to the law when he is deliberating whether to break it
or not. It is perhaps more like a goad than a guide. But there
seems to me to be nothing disreputable in allowing the law to
function in this way, and it is arguable that it functions in this
way rather than in the rationalistic way more frequently than is
H.L.A. Hart, Punishment and Responsibility 134 (1968).
The law's "goad,"rather than its guide, is also
emphasized by Professor LaFave. He asks whether more than civil
negligence should be required for a criminal offense, and concludes
"that there is no need to choose one answer for all crimes." His
primary focus is on deterrence:
The principal policy question is whether the
threat of punishment for objective fault will deter people from
conducting themselves in such a way as to create risk to others.
Though the matter is disputed, it would seem that some people can
be made to think, before they act, about the possible consequences
of acting, so that the existence of objective-fault crimes does
tend to reduce risky conduct. . . . The point is that the
legislature might, in the exercise of its police power, require
subjective fault for some crimes and objective fault for other
1 LaFave at 337-38 (footnotes omitted).
It is here, grounded in a theory of reasonable
deterrence, that any explanation for objective fault crimes must
have its origins. Despite Professor Hall's challenge, it cannot be
disputed that the threat of punishment necessarily deters. Even
when an offender does not of his own accord realize that his
conduct is wrongful, he can in many cases be made to take care.
Coercion that causes the offender to pay attention can serve
important social aims that would not be achieved by proscriptions
that only come into effect when the transgressor recognizes the
harm in his or her behavior.
The fulcrum for deciding what level of intent is the
absolute minimum for a particular offense is a question of when an
expectation of individual conformity is reasonable. Due process
under Alaska's Constitution requires that social interests be
weighed against those of the individual. While society's interest
in obtaining compliance with its regulations is strong, it can
never outweigh the individual's interest in freedom from
substantial punishment for a violation he or she could not
reasonably have been expected to avoid. The threshold question,
then, is whether the defendant's conduct is something which society
could reasonably expect to deter.
The principle of reasonable deterrence allows the
imposition of strict liability in some circumstances. Generally,
a separate mental element need not be proved when the failure to
abide by a rule is inherently unreasonable. This occurs, for
instance, where a person's conduct is hedged in by regulation, such
that one may readily assume his or her routine decisions are guided
by rules. Thus, strict liability is permitted for heavily
regulated industries. See Cole v. State, 828 P.2d 175, 178 (Alaska
App. 1992). Persons operating in rule-laden environments, and
whose actions have a substantial impact on public health, safety,
or welfare, can reasonably be assumed aware of their governing
Another type of law whose violation is inherently
unreasonable is the malum in se offense. As we explained in
Hentzner, these are crimes which "reasoning members of society
regard as condemnable,"such that "awareness of the commission of
the act necessarily carries with it an awareness of wrongdoing."
613 P.2d at 826.
Finally, an exception exists for those regulations which
call for only a modest fine. Generally, their underlying conduct
is not so inherently unwholesome that it can be reasonably assumed
the misdemeanant was aware of its wrongfulness. Indeed, these
punishments usually aim to coerce the public at large, and are
meant to influence behavior by their very infliction. There is no
implied assumption that the transgressor reasonably should have
been aware he or she had stepped outside the law. Broad strict
liability of this sort normally would run afoul of due process,
[Fn. 15] but here it is allowed because the penalties are light.
Reasonable deterrence, then, is the basic principle of
the due process balance between individual and societal interests.
The ultimate question is whether society can reasonably expect the
individual to conform his or her conduct to the law. For the
strict liability exceptions, a separate showing of a departure from
social mores is unnecessary, as it can reasonably be presumed. [Fn.
16] This notion of a duty of reasonable social conformity
undergirds the entire law of mens rea.
Within the confines of this understanding, we will defer
to the legislature's directives. It appropriately decides what
conduct is inherently wrongful to reasoning members of society and
when the social interest requires enforcement without mens rea.
However, for deference to be accorded, it must be reasonably
apparent that the enactment was in exercise of such judgment.
Strict liability cannot be applied simply to expedite punishment
when there is no reasonable expectation of deterrence.
6. The sufficiency of simple negligence
Outside of these strict liability exceptions, though, a
separate showing of simple civil negligence is both necessary and
sufficient under Alaska's Constitution. Negligence, rather than
gross negligence, is the minimum, not because we believe it is the
necessary element of every prosecutor's case; indeed, all courts
have allowed a separate showing of mental culpability to be
dispensed with altogether in some circumstances. Rather, the
negligence standard is constitutionally permissible because it
approximates what the due process guarantee aims at: an assurance
that criminal penalties will be imposed only when the conduct at
issue is something society can reasonably expect to deter. [Fn. 17]
Partisans of the criminal negligence approach have
expressed the concern that an ordinary negligence standard gives
the criminal proceeding an unseemly resemblance to tort law.
Commonwealth v. Heck, 491 A.2d 212, 224 (Pa. Super. 1985), aff'd,
535 A.2d 575 (Pa. 1987), which adopts criminal negligence as a
minimum, notes that the civil law standard serves purposes unsuited
to the "harshness of criminal punishment." Tort aims simply to
"shift the economic costs of injuries onto those responsible for
them."[Fn. 18] Id.
This desire to differentiate criminal proceedings from
civil proceedings appears to drive the definition of criminal
negligence. That standard is typically characterized as "something
more"than ordinary negligence. See Andrews v. Director of Pub.
Prosecutions, 26 Crim. App. Rep. 34 (1937) ("similar lack of care
such as will constitute civil liability is not enough") (Lord
Atkin). Thus the only consensus and precision available in the
definition of criminal negligence is that it is not civil
negligence. [Fn. 19]
This fear of tort standards is unfounded. In response to
similar allegations that civil standards do not protect, the
Michigan Supreme Court has noted that "[i]t is just as much a
violation of the due process clause of the Constitution to take
property as it is to take the liberty of a person." People v.
McMurchy, 228 N.W. 723 (Mich. 1930). In other words, the same
constitutional clause which governs the criminal prosecution would
also govern a civil proceeding, and it is undisputed that due
process is satisfied by the negligence standard in that forum.
We are not persuaded that the simple or ordinary civil
negligence standard is inadequate to protect Hazelwood's interests.
We conclude that the Superior Court's adoption of an ordinary civil
negligence mens rea standard in its instructions to the jury did
not constitute a denial of due process under article I, section 7
of the Alaska Constitution.
B. The Statute
Hazelwood next contends that the statute under which he
was convicted, former AS 46.03.790(a), itself incorporates the
criminal negligence mens rea standard. His argument is
unconvincing. The legislature made "negligence"the standard of
liability. Unadorned, this word is commonly understood to mean
ordinary negligence, not criminal or gross negligence. Nowhere in
the criminal code is an ordinary negligence standard applied
through the words "civil negligence"or "ordinary negligence."
These added terms are used only when differentiating common
negligence from criminal negligence. Otherwise, criminal
negligence is always referred to specifically, and "negligence"
always denotes ordinary, civil negligence. [Fn. 20]
Hazelwood also contends that the legislative history of
AS 46.03.790(a) points to an intent to incorporate a criminal
negligence standard. Specifically, he relies on Governor
Sheffield's transmittal letter accompanying the proposed bill that
eventually added the negligence standard to sec. 790. [Fn. 21] The
letter states that the proposed change aims to
bring the existing provisions into conformity
with language and penalty levels in the Revised Criminal
Code. . . .
[To this end, it recommends] changing the
criminal "state of mind"provision from "willful"to "knowing,"for
class A misdemeanors, while making clear that "negligent"
violations are intended to be class B misdemeanors. . . .
1984 Alaska Senate Journal 2079-80.
Hazelwood contends that the reference to the Revised
Criminal Code suggests an intent to adopt the "criminal negligence"
standard defined in the Code. We draw the opposite inference. The
Governor's letter exhibits an awareness of the Code and its
provisions, which included the criminal negligence standard. Yet
the letter only speaks of negligence, not the special criminal
negligence test. We can only conclude that the Governor's office
knew of the criminal negligence provision and consciously chose to
forego this more exacting standard in favor of simple negligence.
This interpretation is consistent with the settled rule that a
difference in language implies a difference in meaning. See Neal
v. Honeywell, Inc., 33 F.3d 860, 863 (7th Cir. 1994); United Parcel
Serv. v. State, Dep't of Revenue, 687 P.2d 186, 191 (Wash. 1984).
The Superior Court's adoption of an ordinary negligence
standard was not erroneous. We therefore REVERSE the holding of
the Court of Appeals on this issue. The case is remanded to the
Court of Appeals for consideration of any unresolved issues
originally raised by Hazelwood on appeal. [Fn. 22]
COMPTON, Chief Justice, dissenting.
I am not persuaded that a criminal offense can be
predicated on proof of civil negligence. In my view, neither
existing precedent nor public policy supports such a result. I
A. The Ambiguity as to the Required Mens Rea under Former
AS 46.03.790(a) Mandates Application of the Criminal Negligence
The court does not deny that there is an ambiguity as
to the mens rea required for conviction under former
AS 46.03.790(a). [Fn. 1] "Ambiguities in criminal statutes must
be narrowly read and construed strictly against the government."
State v. Andrews, 707 P.2d 900, 907 (Alaska App. 1985), opinion
adopted by State v. Andrews, 723 P.2d 85, 86 (Alaska 1986); see
also Wells v. State, 706 P.2d 711, 713 (Alaska App. 1985) ("It is
well established that, in accordance with the rule of lenity,
ambiguities in penal statutes must be resolved in favor of the
accused."); Manderson v. State, 655 P.2d 1320, 1323 (Alaska App.
1983) ("Since the provision is ambiguous and both the state's and
[the defendant's] interpretations are arguably reasonable, we
agree that [the defendant's interpretation] should prevail under
the Bell [v. United States, 349 U.S. 81, 83 (1955)] 'rule of
lenity.'"). Accordingly, the statute must be construed to
require criminal negligence, rather than civil negligence. [Fn. 2]
That should end the discussion.
B. Alaska Precedent Mandates Application of a Criminal
Turning to the merits of the decision, the opinion of
the court does considerable violence to precedent. In Speidel v.
State, 460 P.2d 77 (Alaska 1969), we expressly rejected a civil
negligence standard as defining the minimum mens rea for criminal
punishment. See id. at 80 ("To convict a person of a felony . .
. without proving criminal intent, is to deprive such person of
due process of law."). The court articulates no basis for
distinguishing Speidel. [Fn. 3] I see no basis for concluding
that Speidel does not control, or that it does not require
application of a criminal negligence standard.
Many of the decisions upon which the court relies
reject strict liability rather than civil negligence, as the
court states. Op. at 6. However, these decisions in fact do not
authorize civil negligence as the minimum mens rea for criminal
punishment. See, e.g., Hentzner v. State, 613 P.2d 821, 825
(Alaska 1980) (requiring "an awareness of wrongdoing"for
criminal liability); Alex v. State, 484 P.2d 677, 682 (Alaska
1971) (holding that crime of escape required intentional
departure from custody); Kimoktoak v. State, 584 P.2d 25, 29-30
(Alaska 1978) (implying in a criminal hit-and-run statute a
requirement that the defendant have knowingly failed to stop and
render assistance), superseded by statute on other grounds as
noted in Wylie v. State, 797 P.2d 651, 660 n.8 (Alaska App. 1990).
Demonstrably, these cases do not support the proposition
that a civil negligence standard provides the minimum mens rea
for a criminal conviction. To the contrary, these decisions
reject a strict liability standard not in favor of a civil
negligence standard but in favor of a requirement of "criminal
intent." See, e.g., Hentzner, 613 P.2d at 825 ("[C]riminal
intent is an essential predicate of criminal liability.");
Kimoktoak, 584 P.2d at 29 (requiring "criminal intent"to support
conviction); Alex, 484 P.2d at 681 ("[T]o constitute guilt there
must be not only a wrongful act but a criminal intention."). It
could be argued, as the court concludes, that "criminal intent"
means any mental state the legislature determines to be required
for the particular crime, excepting only strict liability.
However, in Alex, the court noted that for "criminal intent"to
exist, "[it] is imperative . . . that an accused's act be other
than simply inadvertent or neglectful." Alex, 484 P.2d at 681
(emphasis added). This statement indicates that "criminal
intent"entails something more than mere "neglectfulness"or
ordinary negligence. This interpretation is strengthened by the
fact that the cited decisions all rest upon, and refer with
approval to, our decision in Speidel. See, e.g., Hentzner, 613
P.2d at 827; Kimoktoak, 584 P.2d at 29; Alex, 484 P.2d at 681.
As noted, Speidel rejected a civil negligence standard in favor
of a "criminal intent"requirement. Speidel, 460 P.2d at 80.
"Criminal intent,"as defined in Alex and Speidel, does not
include civil negligence.
The court bases much of its argument on State v. Guest,
583 P.2d 836 (Alaska 1978), in which the defendant was accused of
statutory rape. We noted that "the charge of statutory rape is
legally unsupportable under the principles of Speidel, Alex, and
Kimoktoak unless a defense of reasonable mistake of age is
allowed." Id. at 839. To fail to do so would be "to impose
criminal liability without any criminal mental element." Id. We
then observed that
Although AS 11.15.120 is silent as to
any requirement of intent, this is true of many felony statutes.
The requirement of criminal intent is then commonly inferred. In
fact, in such cases, where the particular statute is not a public
welfare type of offense, either a requirement of criminal intent
must be read into the statute or it must be found unconstitutional.
Since statutes should be construed where possible to avoid
unconstitutionality, it is necessary here to infer a requirement of
Id. (citations and footnotes omitted).
The court mischaracterizes Guest in asserting that we
"upheld the imposition of criminal sanctions on the basis of
simple, ordinary negligence." Op. at 6. To the contrary, the
issue in Guest involved only whether the defendant's "reasonable
belief"that the victim was of the age of consent negated the
criminal intent necessarily implied in the statute. Guest, 583
P.2d at 839-40. The crime itself involved a separate mental
state. The discussion in Guest concerning "reasonable belief,"
which the court wrongly equates with "simple negligence,"[Fn. 4]
involved only the defense, and had no bearing on the core
elements required for conviction of the charged offense itself.
Guest did not authorize conviction for "simple negligence,"as
the court asserts. Moreover, Guest did not overrule Speidel.
Since Speidel remains good law notwithstanding Guest, it is
incorrect to assert that Guest approved a civil negligence
standard in all cases, as does the court. Since the case at bar
considers the "criminal intent"requirement in the context of a
core element of the crime in question, rather than in the context
of a defense, Guest does not apply.
Our jurisprudence recognizes several exceptions to the
minimum "criminal intent"requirement outlined in the above
cases. None of these exceptions are applicable, nor does the
court purport to apply any of them.
Speidel recognized an exception for "public welfare"
offenses, which relate to the "health, safety, and welfare"of
the public, and which carry penalties that "commonly are
relatively small, and [do] no grave damage to an offender's
reputation." Speidel, 460 P.2d at 78-79 (citing Morissette v.
United States, 342 U.S. 246, 250 (1952)). The crime at issue here
carries too severe a potential penalty imprisonment for
ninety days to fall within this exception. See State v. Rice,
626 P.2d 104, 116 (Alaska 1981) (Matthews, J., concurring)
("[A]ny prison sentence is an important, even traumatic, event in
the life of a human being . . . . Further, any prison sentence
is likely to have a considerable detrimental effect on one's
We also have recognized an exception for activities
within a "heavily regulated industry." See id. at 107-08. Under
that exception, participants in heavily regulated activities have
a reduced due process interest as a consequence of that
participation, and therefore may be subject to criminal liability
under a less culpable mens rea than is ordinarily required. See
Beran v. State, 705 P.2d 1280, 1292 (Alaska App. 1985) (Bryner,
C.J., concurring) ("[T]he state has a legitimate right to hold
participants in the [commercial fishing] industry to a higher
standard of care than might otherwise be appropriate as a
predicate for criminal responsibility."). As the captain of an
oil tanker, Hazelwood certainly qualifies as a participant in a
heavily regulated industry. However, former AS 46.03.790(a)
applied not only to participants in oil production operations,
but also to members of the general public. The statute therefore
cannot be construed to require a mental state which could not
apply to members of the general public, unless one accepts the
troublesome proposition that a single passage in a statute can
have different meanings for different defendants. For this
reason, the court of appeals refused to apply the heavily regulated
industry exception to this case. Hazelwood v. State,
912 P.2d 1266, 1279 (Alaska App. 1996). The parties have not
challenged that decision.
Since none of the exceptions to the minimum mens rea
requirement of criminal intent apply, our precedent requires the
application of a criminal negligence standard as we held in Speidel
C. Public Policy Precludes Imposition of Criminal
Penalties for Conduct That Is Merely Unreasonable under a Civil
The court accepts the imposition of criminal sanctions
for any conduct which "is something which society could
reasonably expect to deter." Op. at 18. The court acknowledges
that this test affords the legislature complete discretion to
impose criminal sanctions upon any conduct which is merely
negligent under a civil standard. Op. at 20-23. This approach
is fraught with difficulties, and should not be adopted as a
matter of policy.
In my view, notions of fundamental fairness, which
underlie all due process issues, require a showing of something
more than "failure to act reasonably"before a defendant may be
subjected to imprisonment. See State v. Melendez, 834 P.2d 154,
157 (Ariz. 1992) ("The touchstone of due process . . . is
fundamental fairness."). Professor LaFave notes that a "general
feeling"has arisen among judges that
[S]omething more [i]s required for criminal
liability than the ordinary negligence which is sufficient for tort
liability. The thought [i]s this: When it comes to
compensating an injured person for damages suffered, the one who
has negligently injured an innocent victim ought to pay for it; but
when the problem is one of whether to impose criminal punishment on
the one who caused the injury, then something extra beyond
ordinary negligence should be required.
1 Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law 326
(1986). This position is persuasive. Civil negligence provides
an acceptable standard of fault for allocating any burden which
neglectful conduct creates. However, that standard does not
provide an adequate basis for levying a separate punishment on a
neglectful person. In particular, a punishment of imprisonment
is sufficiently severe that it should not be imposed, with the
possible exception of the cases noted, for conduct which involves
only civil negligence. The right to due process would support
imprisonment for a truly gross deviation from "reasonable"
conduct. It does not, in my view, support imprisonment for every
deviation whatsoever from "reasonableness."
Our current definition of criminal negligence
demonstrates the prevailing view that something greater than
civil negligence should be required to authorize criminal
sanctions. Alaska Pattern Jury Instruction (Criminal)
81.900(a)(4) provides that "[c]riminal negligence is something
more than the slight degree of negligence necessary to support a
civil action for damages and is negligence of a degree so gross
as to be deserving of punishment." This definition suggests that
the "slight"degree of negligence required for civil negligence
is not "deserving"of criminal punishment. Moreover, this
standard is specifically calculated to "insure that proof of
ordinary civil negligence will not give rise to criminal
liability." Commentary on the Alaska Revised Criminal Code,
Senate Journal Supplement No. 47 at 142-43, 1978 Senate Journal
1399, quoted in Andrew v. State, 653 P.2d 1063, 1066 n.5 (Alaska
App. 1982). Of course, the fact that the legislature has
restricted criminal punishment to conduct which is more culpable
than "slight"civil negligence does not render the legislature
constitutionally forbidden to abrogate that restriction.
However, the current definition of criminal negligence provides a
persuasive argument that societal notions of fundamental fairness
do not permit imprisonment for the simple neglectfulness embodied
in the civil negligence standard. Such notions, in turn, shape
the right to due process.
It is well established that "[m]ere negligence is
insufficient to justify an award of punitive damages." Johnson &
Higgins of Alaska Inc. v. Blomfield, 907 P.2d 1371, 1376 (Alaska
1995) (holding that punitive damages may only be awarded "where
the wrongdoer's conduct can be characterized as outrageous, such
as acts done with malice or bad motives or a reckless
indifference to the interests of others.") (quoting Bridges v.
Alaska Hous. Auth., 375 P.2d 696, 702 (Alaska 1962)); see also
Restatement (Second) of Torts sec. 908 cmt. b (1965) ("Punitive
damages are not awarded for mere inadvertence, mistake, errors of
judgment and the like, which constitute ordinary negligence [but
are restricted to] conduct involving some element of outrage
similar to that usually found in crime."). It is difficult to
accept the proposition that an action which cannot form the basis
for a punitive civil award fairly can be sanctioned with
imprisonment. Admittedly, the prohibition of punitive damages
for conduct which is merely negligent has not been
constitutionalized. However, this prohibition provides yet
another strong indication that judicially accepted notions of
fairness foreclose the imposition of explicitly punitive measures
for conduct which is negligent under a civil standard.
Since I cannot accept the proposition that imprisonment
is a fundamentally fair punishment for civil negligence, I cannot
support the court's decision to remove all due process barriers
to the criminalization of negligent conduct. [Fn. 5] Issues of
substantive due process are issues of public policy at their most
basic level. I cannot agree that public policy is served by
giving legislators free rein to impose criminal sanctions upon
whatever conduct a jury may find to be unreasonable.
I cannot agree, either as a matter of policy or a
matter of precedent, that a person may be subjected to criminal
liability upon a showing of civil negligence alone, except in
rare circumstances. In my view, the heightened punishments
contained in criminal statutes are constitutionally permissible
only when a defendant is proven guilty of conduct that is, at a
minimum, grossly negligent. I would affirm the decision of the
court of appeals.
Accord Commonwealth v. Heck, 491 A.2d 212, 216 (Pa. Super.
1985), aff'd, 535 A.2d 575 (Pa. 1987) ("While both criminal
negligence and recklessness involve 'gross' deviations from
reasonable conduct, recklessness includes conscious disregard of a
risk whereas criminal negligence is accompanied by lack of
awareness of a risk.").
A person convicted of a class B misdemeanor at the time of
Hazelwood's offense could be "sentenced to a term of imprisonment
of not more than 90 days." AS 12.55.135(b).
Because this ruling is a legal conclusion, we review de novo.
See Aviation Associates v. Temsco Helicopters, 881 P.2d 1127, 1130
n.4 (Alaska 1994).
See Hentzner, 613 P.2d at 825 ("[C]riminal intent is an
essential predicate of criminal liability.") (citing Speidel, 460
P.2d at 78); Kimoktoak, 584 P.2d at 29 ("It is well-settled that an
act or omission can result in serious criminal liability only when
a person has the requisite criminal intent."); State v. Guest, 583
P.2d 836, 838 (Alaska 1978) ("[I]t would be a deprivation of
liberty without due process of law to convict a person of a serious
crime without the requirement of criminal intent.") (citing
Speidel, Alex, and Kimoktoak); Alex, 484 P.2d at 681 ("[T]o
constitute guilt there must be not only a wrongful act but a
criminal intention."); Speidel, 460 P.2d at 80 ("To convict a
person of a felony for such an act [failure to return a rental
car], without proving criminal intent, is to deprive such person of
due process of law.").
Article I, section 7 of the Alaska Constitution provides:
"No person shall be deprived of life, liberty, or property without
due process of law."
See also J. Salmond, Jurisprudence 410 (8th ed. 1930)
("[n]egligence . . . is rightly treated as a form of mens rea,
standing side by side with wrongful intention as a formal ground of
For further elaboration of the distinction between intent and
volition see James B. Brady, Punishment for Negligence: A Reply to
Professor Hall, 22 Buff. L. Rev. 107, 109-16 (1972).
See also Morissette, 342 U.S. at 250 ("The contention that an
injury can amount to a crime only when inflicted by intention is no
provincial or transient notion. It is as universal and persistent
in mature systems of law as belief in freedom of the human will and
a consequent ability and duty of the normal individual to choose
between good and evil.").
See, e.g., Provincial Motor Cab Co. v. Dunning, 2 K.B. 599
(1909) (automobile safety rules).
See, e.g., Stonehouse v. Masson, 2 K.B. 818 (1921) (strict
liability for fortune telling); Regina v. Bishop, L.R. 5 Q.B.D. 259
(1880) (housing lunatics).
Compare Regina v. Stevenson, 3 Fost. & F. 106 (N.P. 1862)
(requiring proof of butcher's knowledge of unfitness for offense of
selling unsound meat), with Hobbs v. Winchester Corp., 2 K.B. 471
(1910) (conviction under Public Health Act of 1875 does not require
proof that butcher could have known of meat's unsoundness).
See Francis Bowes Sayre, Public Welfare Offenses, 33 Colum. L.
Rev. 55, 62, 64 (1933). Professor Sayre's work has aged well; his
article supplied the label "public welfare offense"and has been
influential in high places. The Supreme Court adopted as a federal
rule of statutory construction his criteria for boxing in strict
liability crimes in Morissette, 342 U.S. 246. Compare id. at 256-
57, 260-62, and Sayre, supra, at 72.
Compare Miller v. State, 3 Ohio St. 475, 487 (1854) (requiring
intent for offense of selling alcohol to a minor); and Duncan v.
State, 7 Humph. 148, 150 (Tenn. 1846) (intent required for offense
of transporting slave without master's consent); with McCutcheon v.
People, 69 Ill. 601 (1873) (interpreting Illinois statute adopted
from the Ohio one as not requiring mens rea); and State v.
Baltimore and Susqu. Steam Co., 13 Md. 181 (1857) (no intent
In Morissette, the Supreme Court draws attention to the need
for greater regulation created by the changes wrought by the
industrial revolution. Echoing Sayre, the Court emphasizes light
penalties and protecting "the efficiency of controls deemed
essential to the social order as presently constituted."
Morissette, 342 U.S. at 260. Ultimately, though, the Court allows
that it does not undertake "to delineate a precise line or set
forth comprehensive criteria for distinguishing between crimes that
require a mental element and crimes that do not." It concedes that
the law in this area is "neither settled nor static." Id.
These are offenses that are based either on strict liability
or negligence; they do not require any subjective awareness of
wrongdoing on the defendant's part.
See Anderson v. State, 11 S.W. 33, 34 (Tex. 1899) ("To coerce
by criminal prosecution every person to supervise all other persons
and things, would destroy that division of labor and responsibility
by which alone business can be safely conducted. . . . Nothing can
be effectually guarded when everything is to be guarded by
In other words, even strict liability crimes do not dispense
with the requirement of criminal intent. Rather, because they rest
on a fair presumption of unreasonableness, they do not require that
negligence be shown separately.
We note also that the overwhelming majority of jurisdictions
allow crimes based on ordinary negligence. See Daniels v. People,
411 P.2d 316, 317-18 (Colo. 1966); State v. Miles, 457 P.2d 166,
169-70 (Kan. 1969); Commonwealth v. Burke, 383 N.E.2d 76, 78-80
(Mass. 1978); People v. Olson, 448 N.W.2d 845 (Mich. App. 1989)
(two year sentence upheld); People v. McKee, 166 N.W.2d 688, 691
(Mich. App. 1968); State v. Smith, 368 S.E.2d 33 (N.C. App. 1988),
aff'd, 374 S.E.2d 866 (N.C. 1989); State v. Jenkins, 294 S.E.2d 44
(S.C. 1982); State v. LaBonte, 144 A.2d 792, 794 (Vt. 1958) ("the
power of a legislature to define a crime based upon ordinary
negligence has been recognized in numerous jurisdictions"). Cf.
State v. Hedges, 113 P.2d 530, 536 (Wash. 1941) (whether to use
negligence or gross negligence is a "matter within the province of
A noteworthy aspect of Heck is that while the vehicular
homicide statute at issue there required a negligence standard, the
lower court had found there was negligence per se because the
defendant had committed a minor traffic violation. See Heck, 491
A.2d at 189. While we decline to follow Heck's lead in adopting
the criminal negligence standard, we find that that court's due
process concerns were justified. Although a jury finding of
ordinary negligence is ordinarily sufficient, that finding has not
been made when negligence per se is invoked; such an approach does
not satisfy the requirement of criminal intent unless the
underlying infraction meets one of the exceptions for strict
The Model Penal Code also adopts the criminal negligence
standard. The commentators concede, however, that
it is quite impossible to avoid tautological
articulation of the final question. The
tribunal must evaluate the actor's failure of
perception and determine whether, under all
the circumstances, it was serious enough to be
condemned. The jury must find fault, and must
find that it was substantial and unjustified.
That is the heart of what can be said in
Model Penal Code, sec. 2.02, cmt. 4.
For a like construction, see Commonwealth v. Berggren, 496
N.E.2d 660, 661 (Mass. 1986); State v. Johnson, 364 P.2d 1019,
1019-20 (Utah 1961); State v. LaBonte, 144 A.2d 792, 794-95 (Vt.
Ch. 77, sec. 8, SLA 1984.
See State v. Hazelwood, 866 P.2d 827, 834 n.15 (Alaska 1993).
Indeed, the court devotes several pages of discussion to the issue of the proper
interpretation of the statute. Op. at 23-24. Such discussion would be unnecessary in the
absence of any ambiguity as to the mens rea required under the statute.
It is well established that any ambiguity in a statute should be resolved in favor of a
construction that does not raise constitutional concerns. See Kenai Peninsula Borough v.
Cook Inlet Region, Inc., 807 P.2d 487, 498 (Alaska 1991) ("[S]tatutes are to be construed
to avoid a substantial risk of unconstitutionality where adopting such a construction is
reasonable . . . ."). Since application of a civil negligence standard would raise a
constitutional question, the statute must be construed so as not to apply such a standard.
Speidel involved prosecution for a felony, rather than a misdemeanor. It could be
argued that the greater the potential punishment, the greater must be the minimum mens rea
for the crime. It could then be said that since the crime at issue here is a
misdemeanor, rather than a felony as in Speidel, the minimum mens rea is civil rather than
Such a rule would be preferable to that which the court adopts. A
distinction on this basis would limit this holding to misdemeanors, mitigating the dangers
inherent in a more expansive holding. It also would seem to be more supportable as a
matter of policy to permit misdemeanor penalties based on civil negligence, than it is to
permit felony penalties similarly. However, our case law draws no such distinction, nor
does the court adopt such a rule in this case. Moreover, this case involves a potential
sentence of imprisonment for 90 days. This penalty is sufficiently serious to weaken any
argument that "severe"penalties require a heightened mental state, whereas less severe
penalties may be imposed upon a showing of civil negligence.
Indeed, Guest did not concern a "simple negligence"standard, but instead involved
a defendant's "reasonable belief." I cannot accept the view that a person's reasonable or
unreasonable belief properly can be characterized as "simple negligence." "Negligence"
refers to conduct, not to belief. While a person's belief may be unreasonable, it cannot be
"negligent"as such. Therefore, although the concepts of negligence and "reasonable
belief"both involve a "reasonable person"standard, they cannot properly be conflated into
a single notion, as the court's interpretation of Guest requires.
I also must take issue with the court's assertion that property and liberty interests
are afforded the same protections under the right to due process. Op. at 22. Both property
and liberty interests are protected under the Due Process Clause. However, it is
inaccurate to say that the same protections apply to both interests. The principle that a
deprivation of liberty is a more serious act than a deprivation of property, and one which
requires greater protections, has surfaced before in our jurisprudence. See Rice, 626 P.2d
at 116 n.1 (Matthews, J., concurring) (stating that all cases which carry the possibility of
incarceration must include a mens rea requirement, unlike cases which do not). Indeed,
the distinction between civil and criminal law rests entirely on the potential for imprisonment
accompanying criminal prosecutions, and the absence of such potential in
civil actions. I therefore find the contention that due process concerns are satisfied in a
criminal context by the same standard which serves in a civil context to be unpersuasive.
Op. at 22-23.