On certification to the Superior Court, Appellate Division.
Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Stein join in this opinion.
Defendants in these two cases challenge the constitutionality of that portion of the Comprehensive Drug Reform Act of 1986 (the Act) that imposes strict criminal liability on manufacturers and distributors of certain controlled dangerous substances (CDS) when death results from the ingestion of the CDSs. N.J.S.A. 2C:35-9. A defendant convicted of distribution or manufacturing is subject to second or third-degree punishment, but if a person dies from ingestion of those CDSs then the defendant is guilty of a first-degree offense. Conviction under the drug death statute requires only that but for the ingestion the death would not have occurred, no matter how "innocent" defendant might otherwise be, if the State can also prove that the death was neither too remote from the defendant's actions nor too dependent on another's conduct to make the conviction unjust.
N.J.S.A. 2C:35-9 (section 9) reads as follows:
a. Any person who manufactures, distributes or dispenses methamphetamine, lysergic acid diethylamide, phencyclidine or any other controlled dangerous substance classified in Schedules I or II, or any controlled substance analog thereof, in violation of subsection a. of N.J.S. 2C:35-5, is strictly liable for a death which results from the injection, inhalation or ingestion of that substance, and is guilty of a crime of the first degree.
b. The provisions of N.J.S. 2C:2-3 (governing the causal relationship between conduct and result) shall not apply in a prosecution under this section. For purposes of this offense, the defendant's act of manufacturing, distributing or dispensing a substance is the cause of a death when:
(1) The injection, inhalation or ingestion of the substance is an antecedent but for which the death would not have occurred; and
(a) too remote in its occurrence as to have a just bearing on the defendant's liability; or
(b) too dependent upon conduct of another person which was unrelated to the injection, inhalation or ingestion of the substance or its effect as to have a just bearing on the defendant's liability.
c. It shall not be a defense to a prosecution under this section that the decedent contributed to his own death by his purposeful, knowing, reckless or negligent injection, inhalation or ingestion of the substance, or by his consenting to the administration of the substance by another.
d. Nothing in this section shall be construed to preclude or limit any prosecution for homicide. Notwithstanding the provisions of N.J.S. 2C:1-8 or any other provision of law, a conviction arising under this section shall not merge with a conviction for leader of narcotics trafficking network, maintaining or operating a controlled dangerous substance production facility, or for unlawfully manufacturing, distributing, dispensing or possessing with intent to manufacture, distribute or dispense the controlled dangerous substance or controlled substance analog which resulted in the death.
In Maldonado, the only question is the constitutionality of section 9, the Court having limited its grant of certification to that issue, 127 N.J. 564 (1992). In Rodriguez, in which we likewise granted certification, 130 N.J. 11 (1992), in addition to the issue of constitutionality, we must decide claims of error concerning the charge and the sentence.
We find section 9 to be constitutional in all respects, and affirm the judgments of the Appellate Division in both cases.
Maldonado is a straightforward drug distribution and strict-liability-death case. Lucy Maldonado obtained heroin for her friend Larry Dunka on May 7, 1988 as an accommodation -- she made no profit. Larry's brother John accompanied him in making the purchase and participated in the use of the heroin. After the purchase Larry and John took the heroin to another location where Larry injected some of it into his own arm and then into John's arm. When John came to the next morning, he found Larry on the floor dead. Maldonado was prosecuted for various offenses including violation of section 9, to which she pleaded guilty, reserving, however, her right to appeal on constitutional grounds. She was sentenced to a term of imprisonment of fifteen years, with a parole ineligibility term of seven years. The Appellate Division affirmed the conviction and upheld the constitutionality of section 9 in an unpublished opinion. The court relied on State v. Ervin, 242 N.J. Super. 584, 577 A.2d 1273 (App. Div.), certif. denied, 122 N.J. 400 (1990), and rejected an attack, not raised in Ervin, that section 9 "violates due process because it reaches unduly remote results" and is "unconstitutionally vague."
In Rodriguez, defendant distributed cocaine to Fred Bennett. Present were Susan Hendricks, defendant's girlfriend, and another man who had accompanied Bennett to defendant's apartment. The cocaine had been weighed and bagged when the police broke into the apartment. In an attempt to hide the evidence, Hendricks and Bennett each swallowed a plastic bag containing cocaine. Within minutes of the police entry, Hendricks collapsed in convulsions on the floor. Emergency medical workers were summoned and, with Bennett looking on, they attempted to resuscitate her. While the medical workers attempted to revive Hendricks, they specifically asked whether anyone else had swallowed drugs. Bennett responded that he had not. Approximately a half hour later, Bennett also went into convulsions and died at the scene. Hendricks subsequently died at the hospital. Rodriguez was charged with violating section 9 for Bennett's death only.
A jury convicted Rodriguez for violating section 9 and for other offenses. On the section 9 count the court sentenced him to an eighteen-year term. The court merged the counts for possession and possession with intent to distribute into the distribution count, for which he was sentenced to a five-year term. On the school zone count he was sentenced to a term of four years subject to a three-year parole disqualification. The three sentences were to run consecutively. On appeal the Appellate Division upheld the constitutionality of section 9, affirmed the convictions, merged the distribution conviction into the school zone conviction, and ordered that the sentences for the school zone conviction and the drug death conviction run concurrently.
In addition to sustaining the constitutionality of section 9, the Appellate Division rejected Rodriguez's claims that the death was too remote as a matter of law, that the charge did not adequately explain his factual claims of remoteness, and, in any event, that it improperly placed the burden of proof on defendant. In sustaining section 9's constitutionality the court, as it did in Maldonado, relied also on our decision in State v. Martin, 119 N.J. 2, 573 A.2d 1359 (1990), in which we imported a remoteness factor into felony-murder jurisprudence. Id. at 31-33. The court also rejected defendant's contention that his school distribution conviction should merge into the section 9 conviction.
Defendants' constitutional arguments are essentially the same, requiring no differentiation of the two cases except for the special circumstances surrounding the death in Rodriguez, which require some additional Discussion of the remoteness issue. The challenge asserts that section 9 is facially unconstitutional because the strict liability aspect of section 9 deprives the defendants of due process of law, and inflicts cruel and unusual punishment, and the "not too remote" element is unconstitutionally vague and unfair. Defendants rely on the Federal and State Constitutions, although no differentiation is suggested by either defendant.
The Due Process Claim -- Lack of Mens Rea
Although recognizing the Legislature's power to impose criminal liability regardless of a defendant's state of mind, or put differently, regardless of culpability, defendants contend that such power is constitutionally limited, is ordinarily applied only to regulatory offenses, and in any event is not a power that encompasses the enactment of section 9.
Section 9 eliminates mens rea (criminal intent), in that a defendant is culpable for the underlying distribution offense but no culpability is required for the deadly result. A defendant is guilty whether the defendant intends the death or has absolutely no idea that it may occur. Criminal liability under section 9, therefore, is similar to liability for felony murder, N.J.S.A. 2C:11-3(a)(3). See Assembly Judiciary Committee, Commentary to the Comprehensive Drug Act 24 (1987) [hereinafter Commentary] (drawing comparison between liability under section 9 and felony-murder statute). A person is liable for felony murder if a death occurs in the commission of a felony notwithstanding that the felon did not purposely, knowingly, recklessly or negligently cause the death. Martin, supra, 119 N.J. at 28 (concluding that felony murder is absolute-liability offense). Similarly, under section 9, a defendant will be criminally liable in the first degree for a death caused by the defendant's distribution of a CDS even if the defendant did not purposely, knowingly, recklessly, or negligently cause the death.
The conceptual framework of defendants' arguments rests in part on the assertion that as the punishment for the offense becomes greater, including more extensive terms of imprisonment, legislative power to impose strict liability becomes constitutionally diminished until it reaches a point at which imposition is prohibited. Applying that concept, defendants emphasize the section's imposition of a potential twenty-year term of imprisonment for what would otherwise be a third or second-degree crime with maximum imprisonment of five or ten years, when according to their argument, a defendant may be totally blameless in a moral sense for the death that occurred. A defendant may have had no reason to believe any death might occur, nor intended, expected, or been able to foresee any such outcome, having merely distributed a small amount of a substance that, the distributor believed, is almost invariably used without harm for social purposes.
The law in this area is well-settled to the contrary. "The legislatures have always been allowed wide freedom to determine the extent to which moral culpability should be a prerequisite to conviction of a crime." Powell v. Texas, 392 U.S. 514, 545, 88 S. Ct. 2145, 2160, 20 L. Ed. 2d 1254, 1274 (1968) (Black, J., Concurring). As our Court of Errors and Appeals held over one hundred years ago, "Nothing in the law is more incontestable than that, with respect to statutory offenses, the maxim that crime proceeds only from a criminal mind does not universally apply." Halsted v. State, 41 N.J.L. 552, 589 (E. & A. 1879). Although the justifications may differ, case after case, almost without exception, has upheld the power of the states to impose strict criminal liability not only in a regulatory setting but for serious offenses as well. United States v. Balint, 258 U.S. 250, 254, 42 S. Ct. 301, 303, 66 L. Ed. 2d 604, 606 (1922) (upholding constitutionality of statute prohibiting sale of illegal drugs that lacked mens rea element); United States v. Holland, 258 U.S. App. D.C. 236, 810 F.2d 1215, 1222-24 (D.C. Cir. 1987) (upholding constitutionality of statute prohibiting sale of drugs near school zone regardless of defendant's knowledge of school's location); United States v. Engler, 806 F.2d 425, 436 (3rd Cir. 1986), cert. denied, 481 U.S. 1019, 107 S. Ct. 1900, 95 L. Ed. 2d 506 (1987) (upholding constitutionality of strict liability provision of Migratory Bird Treaty Act); Guam v. Root, 524 F.2d 195, 197-98 (9th Cir. 1975), cert. denied, 423 U.S. 1076, 96 S. Ct. 861, 47 L. Ed. 2d 86 (1976) (upholding constitutionality of felony-murder statute); Brown v. State, 448 N.E.2d 10, 15 (Ind. 1983) (upholding constitutionality of strict liability felony-murder statute). But see State v. Guest, 583 P.2d 836, 839-40 (Alaska 1978) (holding that defendant could not be convicted of statutory rape if he had reasonable belief that victim was of age; proof of intent is constitutional requirement for serious offenses).
Treatment of the felony-murder rule also illustrates the power of the states to create strict liability crimes. The ancient rule was created apart from any constitutional considerations and has been bombarded by intense criticism and constitutional attack. People v. Aaron, 409 Mich. 672, 299 N.W.2d 304, 327-29 (Mich. 1980) (concluding that original justifications for felony-murder rule no longer exist today); State v. Price, 104 N.M. 703, 726 P.2d 857, 859 (N.M. Ct. App. 1986) (criticizing doctrine as "result-oriented"); Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 72, at 560-61 (1972) (criticizing doctrine as unjustified and predicting its obsolescence); Nelson E. Roth & Scott E. Sundby, The Felony-Murder Rule: A Doctrine at Constitutional Crossroads, 70 Cornell L. Rev. 446 (1985) (arguing that felony-murder rule violates Due Process and Cruel and Unusual Punishment Clauses of Federal Constitution); W.E. Shipley, Annotation, Judicial Abrogation of the Felony Murder Doctrine, 13 A.L.R.4th 1226 (1982).
Nonetheless, the rule has survived more or less intact and still thrives today. Thus, its continued vitality is a strong indicator of states' power to impose strict criminal liability. See Lockett v. Ohio, 438 U.S. 586, 602, 98 S. Ct. 2954, 2963-64, 57 L. Ed. 2d 973, 988 (1978) (plurality opinion) ("That States have authority . . . to enact felony-murder statutes is beyond constitutional challenge."). That felony murder is today almost invariably found in statutory form further demonstrates its resistance to constitutional challenge. E.g., N.J.S.A. 2C:11-3(a)(3); Ala. Code § 13A-6-2 (1993); Cal. Penal Code § 189 (West 1994); N.Y. Penal Law § 125.25 (McKinney 1994).
Indeed, directly contrary to defendants' bedrock assertion, the cases show that the Constitution places a lesser burden on the states to justify strict liability for serious criminal offenses than for regulatory offenses. Absolute liability for regulatory offenses traditionally finds justification in administrative convenience, the need to deter through the most effective forms of prosecution, dispensing with proof of intent, and imposing relatively minor punishment, all adding up to a Conclusion that whatever inJustice results from strict liability is more than counterbalanced by benefit to the public. E.g., State v. Hatch, 64 N.J 179, 184-85, 313 A.2d 797 (1973) (upholding constitutionality of gun control statute without mens rea element as applied to both state residents and nonresidents); United States v. Greenbaum, 138 F.2d 437, 438 (3rd Cir. 1943) (upholding constitutionality of statute prohibiting transportation of adulterated food without requiring knowledge or wrongful intent); Ex parte Marley, 29 Cal. 2d 525, 175 P.2d 832, 835 (Cal. 1946) (upholding constitutionality of statute prohibiting sale of commodity at false weight regardless of seller's intent); People v. Travers, 52 Cal. App. 3d 111, 124 Cal. Rptr. 728, 730 (Cal. Ct. App. 1975) (upholding constitutionality of statute prohibiting sale of mislabelled motor oil regardless of seller's intent); People v. Brown, 98 Ill. 2d 374, 457 N.E.2d 6, 9, 75 Ill. Dec. 216 (Ill. 1983) (upholding constitutionality of statute prohibiting possession of motor vehicles with falsified or removed identification numbers without mens rea element); State v. Baltimore and Susquehanna Steam Co., 13 Md. 181, 187 (1857) (upholding conviction for transporting slave without consent of owner regardless of carrier's knowledge that slave was on board); Hobbs v.Winchester Corp., 2 KB 471, 483-85 (C.A. 1910) (upholding conviction of butcher for selling unsound meat regardless of butcher's actual or constructive knowledge). See generally Frances B. Sayre, Public Welfare Offenses, 33 Colum. L. Rev. 55 (1933) (chronicling growth of and justifications for regulatory offenses). While similar reasoning may be found in some of the cases imposing strict liability for serious criminal offenses involving substantial terms of imprisonment, the overwhelming majority of them make clear that such justifications are not essential, that the legislature's rational Conclusion that the safety of the public requires such draconian measures is enough. E.g., Holland, supra, 810 F.2d at 1223 (upholding constitutionality of statutes prohibiting sale of drugs near school regardless of defendant's knowledge of school's location); State v. Celaya, 135 Ariz. 248, 660 P.2d 849, 856 (Ariz. 1983) (upholding constitutionality of felony-murder statute); State v. Goodseal, 220 Kan. 487, 553 P.2d 279, 286 (Kan. 1976) (same); People v. Benson, 125 Misc. 2d 843, 480 N.Y.S.2d 811, 814 (Sup. Ct. 1984) (same); State v. Hermann, 164 Wis. 2d 269, 474 N.W.2d 906, 912 (Wis. App.), review denied, 477 N.W.2d 286 (1991) (upholding constitutionality of statute enhancing punishment for drug sale near school property, without requiring proof of scienter). The usual rationale is that the added deterrence of strict liability is all the justification that is needed in view of the serious threat to public safety posed by the conduct prohibited by those laws. In the case of felony murder, although the constitutional analysis follows long after its origin, that justification notes the increased risk of homicide during felonies and the need therefore to deter such conduct.*fn1 Goodseal, supra, 553 P.2d at 286.
Here the justification is even stronger: not only is the risk of death clearly present when drugs such as heroin and cocaine are distributed, but the conduct sought to be deterred -- illegal drug manufacture and drug distribution -- is also widely regarded as constituting the most substantial threat to public safety that now exists.*fn2 Society has targeted drug distribution that causes death for enhanced punishment to protect the safety of the public. This judgment is for the Legislature to make. All that is needed is a "conceivable rational basis" for their Conclusion that such added deterrent effect is warranted to protect society. Town of Secaucus v. Hudson County Bd. of Taxation, 133 N.J. 482, 494-95, 628 A.2d 288 (1993), cert. den., U.S. , 114 S. Ct. 1050, 127 L. Ed. 2d 372 (1994). But in this case more than conceivable rationality is present, for the facts and figures irrefutably support that Conclusion. Nationally, in 1986, the year prior to the enactment of the drug death statute, more than 37,000 people suffered drug-related deaths. Bureau of Justice Assistance, U.S. Department of Justice, Report on Drug Control 26 (1987). Many of these deaths can be traced to the illegal drug trade, which is the "most widespread and lucrative organized crime activity in the United States." President's Commission on Organized Crime, America's Habit: Drug Abuse, Drug Trafficking and Organized Crime 6 (1986). Statistics regarding New Jersey's drug trade sound even louder alarms. The Attorney General at the time of the Act's passage reported that "approximately fifty percent of all crimes prosecuted in New Jersey are drug related. At least one-third of all crimes in this state, including violent crime and thefts, are committed by persons who are under the influence of alcohol or illicit substances." W. Cary Edwards, An Overview of the Comprehensive Drug Reform Act of 1987 [sic], 13 Seton Hall Legis. J. 5, 9 (1989) (citing statistics compiled by Office of Attorney General).
As for the effectiveness of strict liability imposed by a law such as section 9, the same standard applies, and we must conclude that a rational justification exists for the legislative determination that it will help. See State v. Ivory, 124 N.J. 582, 592-95, 592 A.2d 205 (1991) (upholding statute enhancing punishment for drug distribution within one thousand feet of school property regardless of defendant's knowledge, because it "presents a rational and reasonable approach by the Legislature to reduce drugs around schools").
Practically all of the state decisions conform to this point of view. A sampling of cases considering the constitutionality of felony-murder statutes that do not require proof of intent to commit the homicidal act exemplify the rule. The Kansas Supreme Court upheld that state's felony-murder rule, after noting that it is "designed to protect human life," because the state's legislative "enactments in such areas are not to be judicially curtailed where they reasonably relate to the ends sought to be attained." Goodseal, supra, 553 P.2d at 286. The Arizona Supreme Court quoted Goodseal to make the same point. See Celaya, supra, 660 P.2d at 856. A New York Supreme Court decision follows the same pattern, holding that "it is for the Legislature and not for the courts to determine the proper elements of felony murder." Benson, supra, 480 N.Y.S.2d at 814. These cases illustrate the rule followed in almost all jurisdictions that a state can justify imposition of strict liability for a serious criminal offense merely by suggesting a rational basis to support the legislative determination that the added deterrence of strict liability punishment represents a reasonable approach.
Only cases from Alaska appear to diverge from the overwhelming majority view. The Alaska Supreme Court has regularly held that proof of mens rea is required in order to impose criminal punishment., Guest, supra, 583 P.2d at 838; Speidel v. State, 460 P.2d 77, 78 (1969).
In New Jersey we have upheld the constitutionality of criminal convictions under statutes imposing strict criminal liability in a variety of circumstances in which some might call the defendant, at least in a limited sense, "blameless." In State v. Fearick, 69 N.J. 32, 350 A.2d 227 (1976), a driver with a suspended driver's license was subject to mandatory imprisonment for being involved in an accident resulting in personal injury, even though the accident was not caused by any fault of the driver. In Ivory, supra, a drug dealer riding his bicycle near a public park was subject to enhanced punishment under a statute regulating possession of drugs within 1000 feet of a school with intent to distribute even though the State did not prove that the dealer intended to sell drugs near school property, even though the State did not prove the dealer knew the park was "school property," and even though the park, owned by a parochial school, was leased to the city and regularly used for general recreational purposes. 124 N.J. at 592-95. In State v. Hatch, 64 N.J. 179, 313 A.2d 797 (1973), we held that a Massachusetts resident driving through New Jersey on his way to Pennsylvania could be convicted of violating this State's gun control statutes requiring a "firearm purchaser identification card" and requiring that firearms be transported in a securely closed package, notwithstanding that the driver had a Massachusetts firearm identification card, was carrying his hunting rifle and shotgun in a manner permitted in his home state, and was unaware that he was subject to additional legal requirements while passing through New Jersey. Those cases, in addition to the implicit validation of the felony-murder rule itself, see Martin, supra, 119 N.J. 2, support the Conclusion that the absence of a mens rea element in section 9 does not violate due process.
The federal experience is no different. The Supreme Court has made clear that no constitutional problem arises when Congress decides that public safety requires criminalization of conduct without proof of mens rea. See United States v. Freed, 401 U.S. 601, 609-10, 91 S. Ct. 1112, 1117-18, 28 L. Ed. 2d 356, 363-64 (1971) (upholding constitutionality of gun control statute without element of intent or knowledge). Holland, supra, is close to home; the federal statute used to punish a drug distributor apprehended near school property without proof of the defendant's knowledge survived constitutional scrutiny because it was "amply supported" by "Congress's heightened interest in protecting children from both the indirect and the direct perils of drug traffic. . . ." 810 F.2d at 1222-24. Similarly, because of Congress's "power to delete the requirement of scienter where the statute deals with . . . safety," a federal government inspector who accepts a bribe may constitutionally face felony punishment even without proof of intent to accept the bribe. United States v. Mullens, 583 F.2d 134, 138 (5th Cir. 1978). In addition, the federal criminal RICO statute has been upheld against constitutional challenge despite its failure to require scienter or knowledge because "it is clearly within Congressional power to create a strict liability offense which dispenses with any element of 'intent.'" United States v. Boffa, 513 F. Supp. 444, 464 (D. Del. 1980).
The Federal and State cases stand for the ultimate proposition that the State has the power to define a crime without proof of mens rea so long as the definition does not offend fundamental notions of Justice. Thus, constitutional-due-process limitations on strict-liability criminal statutes apply when the underlying conduct is so passive, so unworthy of blame, that the persons violating the proscription would have no notice that they were breaking the law. Lambert v. California, 355 U.S. 225, 228-30, 78 S. Ct. 240, 2 L. Ed. 2d 228, 231-32 (1957) (invalidating municipal ordinance criminalizing act of convicted felon remaining in Los Angeles more than five days without registering with City). Illegal drug distribution obviously does not fit that exception.
The ultimate constitutional underpinning for defendants' argument, regardless of the weight of precedent, is that to impose such a penalty -- twenty years imprisonment -- simply because of a result that defendant had no idea was possible, not only "cuts across the grain of criminal law," Martin, supra, 119 N.J. at 20, but also strikes at the very root of that system, for it is alleged to be fundamentally unfair and wholly unjust. Even if it is unfair or unjust in some situations, it does not come anywhere near the point of invoking constitutional due process limits on what would otherwise be clear legislative power. Drug distribution puts the entire society at risk. More important than the societal interest, however, the defendant can and should be held to the knowledge of the dangerousness of his or her activity, can and should be held to the knowledge that death may result, can and should be held to the knowledge that the law will impose severe punishment if death does result, regardless of its unlikelihood and the defendant's lack of criminal intent with respect to the death. To the extent moral culpability is a desirable element of a criminal offense (it is certainly not constitutionally required), it is inextricably embedded in the drug death statute. These considerations far overpower any degree of inJustice that may result from the application of section 9.
The only significant area where the rule is different is in capital punishment jurisprudence where imposing the death penalty for a strict liability crime such as felony murder may violate the Eighth Amendment. Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982); see infra at (slip op. at 27-28). But other than cases of capital punishment, the weight of authority clearly supports the legislative power to create that criminal liability for selected offenses.
For those reasons we reject this aspect of defendants' due process claims.