Is Mens Rea Required by Due Process?

LCP Chemicals-Georgia (“LCP”), a division of Hanlin Group, Inc. (“Hanlin”), owned and operated an industrial plant in Brunswick, Georgia (the “plant”) at which a mercury cell, chlor- alkali process was used to manufacture chlorine gas, sodium hydroxide, and bleach, principally for the paper and wood pulp industries. The plant generated contaminated wastewater and waste sludges. The plant also utilized other chemicals and produced hazardous substances that were subject to certain environmental regulations, including wastewater discharge limitations set forth in LCP’s National Pollutant Discharge Elimination System (“NPDES”) permit; the permit authorized the plant to store wastewater while awaiting treatment in LCP’s wastewater treatment plant. LCP also generated hazardous wastes subject to Resource Conservation and Recovery Act (“RCRA”) regulation. The plant’s operations also were subject to Occupational Safety and Health Administration (“OSHA”) regulations designed to ensure for the protection and safety of workers.

LCP’s parent corporation, Hanlin, filed a voluntary petition for bankruptcy under Chapter 11 in July, 1991. The bankruptcy proceedings severely limited the funds available for maintenance, repair and environmental compliance at the plant. LCP had operational and compliance problems from 1993 until the plant closed in 1994, which it duly reported to the Georgia Environmental Protection Department (“EPD”) in LCP’s Discharge Monitoring Reports.

The volume of wastewater exceeded LCP’s wastewater treatment capacity, and LCP pumped the wastewater into empty oil tanks for storage before treatment and final discharge from the wastewater treatment plant. In 1993, LCP experienced other operational problems which it promptly reported to Georgia EDP. When the plant closed in 1994, GA EDP turned the Brunswick plant over to the U.S. Environmental Protection Agency (“EPA”). EPA listed the facility as a Superfund site and
commenced cleanup. The United States criminally prosecuted individual officers and employees of Hanlin, including petitioner herein, for violations of federal environmental statutes.

Randall Hansen was charged and convicted, as were Christian and Taylor, on all counts with which they were charged, except for Count 42 – the Endangered Species Act violation. The district court sentenced Randall Hansen to serve 46 months of incarceration and to pay a fine of $20,000; it sentenced Christian Hansen to serve 108 months of incarceration and to pay a $20,000 fine, and it sentenced Taylor to serve 78 months of incarceration but without a fine. The district court denied the all defendants’ post-trial request for a judgment notwithstanding the verdict and/or a new trial.

On August 24, 2001, the Eleventh Circuit Court of Appeals issued a 74 page per curiam opinion, affirming the convictions on all counts. The Eleventh Circuit improperly relied on the responsible corporate officer doctrine as a basis for finding liability under environmental criminal statutes.

Issue Areas:

Limited Government

Case:

Hansen v. US, (Supreme Court) (petition stage)

Read the Amicus Brief:

Question(s) Presented:

1. Whether the “responsible corporate officer” doctrine can be used to hold a person liable where that person no longer had the authority or the capacity to prevent the violations charged and was not in a decision-making role for the corporation at the time the violations occurred.

2. Whether a criminal conviction based on the “responsible corporate officer” doctrine for violations of the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6928(d) & (e), the Clean Water Act, 33 U.S.C. § 1319(c), and the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. § 9603(b) requires the defendant to have actual knowledge of each element charged in the offense.

3. Whether the “responsible corporate officer” doctrine permits felony conviction of individual corporate officers for “failure to detect” violations under environmental statutes for which Congress required proof of actual knowledge.

4. Whether a jury instruction on the doctrine of “responsible corporate officer” permits conviction for “knowing endangerment” under 42 U.S.C. §§ 6928(e) and (f) without a jury finding that the individual corporate officer was actually aware or actually believed that his conduct was substantially certain to place others in imminent danger of death or serious injury.

This brief amicus curiae will address the issue of the erosion of the mens rea requirement by the expansion of the concept of “public welfare offense,” particularly as applied to “environmental crimes,” and the unwarranted expansion of the reach of “public welfare offense.”

Additional Background:

The criminal indictments charged the petitioner and his co-defendants with exceeding the NPDES permit limits (Counts 2-21); for storing wastewater on the cellroom floors and permitting some to escape into the environment (Counts 22-32); for storing wastewater in oil tanks (Count 33); for knowingly endangering employees by exposing them to impermissibly stored wastes and wastewater (Count 34); for taking an endangered species in violation of the Endangered Species Act (Count 42) and for conspiring to commit those violations between July 1, 1985 and February 1, 1994 (Count 1). Unlike his father Christian Hansen and the plant manager, Alfred R. Taylor, Randall was not charged with failing to notify the U.S. Government of unpermitted releases of chlorine or wastewater to the environment (Counts 35- 41).

ALF’s Amicus Brief:

Although the courts, including this Court, have paid lip service to the fundamental importance of the concept of mens rea in our criminal law, the actual treatment of that concept has been haphazard, undisciplined and poorly reasoned. This Court has not, since the early part of the last century, addressed the issue whether there are constitutional dimensions to that concept; and its treatment of mens rea in that era was, in the words of one noted scholar of criminal law, “flimsy. . .dictum” that became a doctrine that “passed into our constitutional law that severe criminal punishment may be inflicted at the legislature’s will, regardless of whether the defendant had any opportunity to conform his conduct to the requirements of law.” H. Packer, Mens Rea and the Supreme Court, 1962 SUPREME COURT REVIEW 107, 116. In Hansen, the Eleventh Circuit dangerously broadened the scope of liability in the environmental criminal arena — despite the heavy penalties that may result from convictions under RCRA and the CWA.

Amicus curiae believes that certiorari is warranted in this case because the decision of the Eleventh Circuit in this case is at odds with this Court’s interpretation of the requirements of the “responsible corporate officer” doctrine and fundamental precepts of criminal law with regard to mens rea, and that it improperly expanded and misapplied the concept of “public welfare offense” to a case involving environmental “crimes” that have severe penalties.

The Eleventh Circuit upheld an unprecedented extension of the “responsible corporate officer” doctrine, first articulated by this Court in United States v. Dotterweich, 320 U.S. 277 (1943) and United States v. Park, 421 U.S. 658 (1971) for strict liability misdemeanor offenses, to serious felony environmental crimes. The decision eroded the required standards for criminal liability of individual corporate officers by sustaining an intra-corporate “conspiracy” theory, predicated solely on standard business discussions among corporate executives dealing with their company’s bankruptcy. The resulting standard has serious legal and policy implications; it not only will permit conviction of innocent individuals, but also ultimately will deter participation in responsible corporate behavior essential to environmental compliance. The Eleventh Circuit’s decision is symptomatic of the improper reduction of the Government’s burden of proof through the elimination of the mens rea requirement.

Amicus curiae ask this Court to decide whether mens rea is a due process requirement.

Status:

On June 3, 2002, the petition for certiorari was denied.