(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued October 13, 1992 -- Decided August 1, 1994
PER CURIAM
In Maldonado, Lucy Maldonado obtained heroin for her boyfriend Larry Dunka, who died sometime
after injecting the drug. Maldonado was prosecuted for various offenses including a violation of N.J.S.A.
2C:35-9 (section 9), a statute under the Comprehensive Drug Reform Act of 1986 (Act) that imposes strict
criminal liability on manufacturers and distributors of certain controlled dangerous substances when death
results from the ingestion of the substance. Maldonado pleaded guilty to the section 9 offense, reserving her
right to appeal on constitutional grounds. She was sentenced to fifteen-years imprisonment with a parole
ineligibility period of seven years.
In Rodriguez, Carlos Rodriguez distributed cocaine to Fred Bennett. In an attempt to hide the
evidence after police arrived, Bennett swallowed a plastic bag containing cocaine and died about one-half
hour later. Rodriguez was charged and convicted of violating section 9 for Bennett's death along with other
drug offenses. On the section 9 count, the court sentenced Rodriguez to an eighteen-year term. The court
merged the count for possession into the possession with intent to distribute count, for which he was
sentenced to a five-year term. On the school zone count, Rodriguez was sentenced to a term of four years
with a three-year parole disqualifier. The sentences were to run consecutively.
Both Maldonado and Rodriguez challenged the constitutionality of section 9. Generally a defendant
convicted of distribution or manufacturing CDS is subject to second or third-degree punishment, but if a
person dies from ingestion of those drugs, then the defendant is guilty of a first-degree offense. Conviction
under section 9 occurs whether or not the defendant was aware of the victim's ingestion, as long as 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.
In Maldonado and Rodriguez, the Appellate Division affirmed the convictions and upheld the
constitutionality of section 9. In Rodriguez, the Appellate Division also 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 Rodriguez. The Supreme
Court granted certification in Maldonado to address the constitutionality of section 9. The Court granted
certification in Rodriguez to address the constitutional issue as well as claims of error in the charge and the
sentence.
HELD: N.J.S.A. 2C:35-9 is constitutional in all respects. In addition, a conviction under N.J.S.A. 2C:35-5(a), the general distributing/manufacturing/dispensing offense, must merge into a conviction
under N.J.S.A. 2C:35-9.
1. Section 9 eliminates criminal intent in that a defendant must be culpable for the underlying
distribution offense but no culpability is required for the death that results; the defendant is guilty whether
he or she intends the death or has absolutely no idea that it may occur. Liability under section 9 is similar to
liability for felony murder. (pp 7-11)
2. A state has the power to define a crime without proof of criminal intent so long as the definition does not offend fundamental notions of justice. Constitutional-due-process limitations on strict liability criminal statutes apply only when the underlying conduct is so unworthy of blame that persons violating the statute would have no notice that they were breaking the law. However, illegal distribution does not fit that exception. Moreover, even if strict liability is unfair or unjust in some situations, it does not reach the point of invoking constitutional due process limits on what would otherwise be clear legislative power. Any injustice that results from the imposition of strict liability is more than counterbalanced by the benefit to the
public; society has targeted drug distribution that causes death for enhanced punishment to protect the public
safety and the Legislature has responded. Thus, there is a rational justification existing for the legislative
determination that section 9 will be a deterrent and is warranted to protect the public. (pp. 11-21)
3. Section 9 is not cruel and unusual punishment; the offense conforms with contemporary standards of
decency and the punishment is not grossly disproportionate to the offense. In view of society's strong
conviction to eradicate drug abuse, "contemporary standards of decency" tolerate, if not mandate, strict
punishment of drug manufacturers and distributors whose drugs prove deadly. Moreover, many jurisdictions
have enacted similar strict liability statutes indicating that section 9 is not out of step with current norms.
Furthermore, added penalties based on result are common in the criminal law and have never been held
violative of the Cruel and Unusual Punishment Clause. (pp. 21-29)
4. On the basis of sound policy, the "not too remote" element survives both a facial vagueness challenge
and vague as-applied claims. The Court sustains the "not too remote" element on the basis of sound policy
and the inherent limitation of language when applied to the circumstances that "remoteness" is intended to
address. No other standard can accommodate the Court's sense of justice than the "too remote to have a
just bearing" standard. Despite the indefiniteness of the remoteness limitation on liability, fairness seems to
require this type of limitation on a defendant's liability. The standard represents a community's sense of
justice regarding whether a defendant should be relieved of punishment because the result appeared too
distant from his or her act. (pp. 29-43)
5. It is also contended that section 9 deprives defendants of the effective use of the intervening cause of
a victim who intentionally, knowingly and recklessly ingests the drugs as either a defense or to prove
remoteness. While remoteness under section 9 might not be as broad a defense as it might otherwise be, it
remains available. There is nothing in the law or the constitution that requires that the Legislature consider
all factors or that deprives the Legislature from excluding or diminishing any factor that it believes might, if
included, significantly adversely affect the law and its purposes. Furthermore, any differences between felony
murder and section 9 that disadvantages defendants in drug death cases are significantly counterbalanced by
other considerations. Even if they were not, the limits and extent of the remoteness factor is a decision for
the Legislature. (pp. 43-49)
6. Rodriguez contends that the court in charging the jury failed to explain the potential significance of
Bennett's ingestion of the drugs to avoid prosecution and that such evidence was critical in rebutting the
prosecution's proof that the death was not too remote. If there was any error in that charge, it was harmless
because the issue was both understood by the jury and, in effect, submitted to it. Rodriguez also argues that
the trial court failed to properly instruct the jury consistent with his version of the facts; however, he failed to
present evidence at trial that would give rise to a different factual scenario necessitating an alternative
charge. The trial court charged the jury consistently with the evidence and clearly informed the jury that the
State was obligated to prove every element of the offense. (pp. 49-56)
7. Rodriguez contends that his conviction for distributing drugs near school property should be merged
with the section 9 drug death conviction. Because each offense requires proof of an element the other does
not, imposing two different sentences on Rodriguez does not violate principles of double jeopardy. Thus,
neither legislative intent nor constitutional limitations requires that convictions for violation of the school
zone statute and section 9 be merged. Rodriguez also questions whether the basic
distribution/manufacture/dispensing offense should have merged with his conviction under section 9.
Because all the elements of the distribution offense are implicated when a defendant is convicted under
section 9, double-jeopardy principles would require merger of those convictions. (pp. 56-63)
Judgment of the Appellate Division is AFFIRMED and the matter in Rodriguez is REMANDED to
the Law Division for resentencing in conformance with the affirmance of the Appellate Division's
determination.
CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, POLLOCK, O'HERN, GARIBALDI and
STEIN join in this opinion. JUSTICE HANDLER concurs in the result only.
SUPREME COURT OF NEW JERSEY
A-25/
46 September Term 1992
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v. (A-25)
LUCY MALDONADO,
Defendant-Appellant.
--------------------------------
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v. (A-46)
CARLOS RODRIGUEZ,
Defendant-Appellant.
Argued October 13, 1992 -- Decided August 1, 1994
On certification to the Superior Court,
Appellate Division.
Claudia Van Wyk, Deputy Public Defender II,
argued the cause for appellants (Zulima V.
Farber, Public Defender, attorney).
Robin Parker, Deputy Attorney General, argued
the cause for respondent in State v. Lucy
Maldano (Robert J. Del Tufo, Attorney General
of New Jersey, attorney).
Chana Barron, Deputy Attorney General, argued
the cause for respondent in State v. Carlos
Rodriguez (Robert J. Del Tufo, Attorney
General of New Jersey, attorney).
PER CURIAM
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
(2) The death was not:
(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 (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 (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.
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, 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,
299 N.W.2d 304, 327-29 (Mich. 1980) (concluding that original justifications for
felony-murder rule no longer exist today); State v. Price,
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 (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,
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,
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,
457 N.E.2d 6, 9 (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 K.B. 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,
660 P.2d 849, 856 (Ariz. 1983) (upholding constitutionality of
felony-murder statute); State v. Goodseal,
553 P.2d 279, 286
(Kan. 1976) (same); People v. Benson,
480 N.Y.S.2d 811, 814
(Sup. Ct. 1984) (same); State v. Hermann,
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.See footnote 1 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.See footnote 2 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 (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 "[a]pproximately 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 (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 "[i]t 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. E.g., Guest, supra, 583 P.
2d at
838; Spiedel 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 (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 (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.
The State and Federal Constitutions require a three part
inquiry in determining whether a punishment is
unconstitutionally cruel and unusual:
First, does the punishment for the crime conform
with contemporary standards of decency? Second, is
the punishment grossly disproportionate to the
offense? Third, does the punishment go beyond what
is necessary to accomplish any legitimate
penological objective?
[State v. Ramseur,
106 N.J. 123, 169
(1987).]
See Coker v. Georgia,
433 U.S. 584, 592,
97 S. Ct. 2861, 2866,
53 L. Ed.2d 982, 989 (1977) (plurality opinion); Solem v.
Helm,
463 U.S. 277,
103 S. Ct. 3001,
77 L. Ed.2d 637 (1983).
But see Harmelin v. Michigan,
501 U.S. 957, ___-___,
111 S.
Ct. 2680, 2684-2701,
115 L. Ed.2d 836, 843-64 (1991) (opinion
of Scalia, J.) (arguing that Eighth Amendment does not require
proportional punishments).
Defendants argue that section 9 fails the first and
second of these tests. They claim that punishment under
section 9 is inconsistent with contemporary standards of
decency and that section 9 inflicts a disproportionate
punishment because it enhances a defendant's punishment on the
basis of fortuitous events that do not reflect the defendant's
culpability.
A comparison of statutes from this state and from other
jurisdictions indicates that section 9 is consistent with
contemporary standards of decency. With respect to the
quantum and nature of the punishment imposed by section 9, it
merely imposes first degree punishment on the defendant.
Thus, the defendant is subject to the same punishment as
numerous other first degree offenders. Moreover, at least
thirteen other jurisdictions have enacted statutes that, like
section 9, impose strict criminal liability for a death
resulting from the distribution or manufacturing of drugs,
indicating that section 9 is not out of step with current
norms. Colo. Rev. Stat. Ann. § 18-3-102(1)(e) (West 1994);
Conn. Gen Stat. Ann. § 53a-54b(6) (West 1994); Del. Code Ann.
tit. 16, § 4751(b) (West 1993); Fla. Stat. Ann. §
782.04(1)(a)(3) (West 1993); Ill. Ann. Stat. ch. 720, para.
5/9-3.3 (Smith-Hurd 1994); La. Rev. Stat. Ann.
§ 14:30.1(A)(3) (West 1993); Minn. Stat. Ann. § 609.195(b)
(West 1993); Nev. Rev. Stat. Ann. § 453.333, 200.010 (Michie
1993); N.H. Rev. Stat. Ann. § 318-B:26(IX) (1993); Pa. Stat.
Ann. tit. 18, § 2506 (1993); R.I. Gen. Laws § 11-23-6 (1993)
(applying only to death of minor); Wash. Rev. Code.
§ 69.50.415 (1993); Wis. Stat. Ann. § 940.02(2) (West 1993).
Most of these impose as severe punishment as does section 9,
or more severe. Indeed, two States make a defendant convicted
under their drug death statutes subject to the death penalty,
Conn. Gen. Stat. Ann. § 53a-54b(6) (West 1994); Fla. Stat.
Ann. § 782.04(1)(a)(3) (West 1993), and two other states
impose life imprisonment on defendants convicted under their
drug death statutes. La. Rev. Stat. Ann. § 14:30.1(B) (West
1993) (mandating life imprisonment at hard labor); N.H. Rev.
Stat. Ann. § 318-B:26(IX) (1993) (imposing up to life
imprisonment).
Furthermore, as we have noted supra at ___ (slip op. at
14), section 9 is but one weapon in the arsenal society is
using to fight its war on the socially debilitating effects of
drug abuse. Given the strength and virtual unanimity of
society's conviction to eradicate drug abuse, we are confident
that "contemporary standards of decency" tolerate, if not
mandate, stern punishment of drug manufacturers and
distributors whose drugs prove deadly. We note that the
United States Supreme Court has recently upheld the
constitutionality of life imprisonment for possession of
cocaine. Harmelin, supra, 501 U.S. at ___, 111 S.Ct. at 2702,
115 L. Ed.
2d at 865. If a life sentence for mere possession
of cocaine is constitutional, then a ten to twenty year
sentence for a death caused by the defendant's distribution or
manufacturing of a CDS is beyond reproach. See also State v.
Burch,
545 So.2d 279, 284-85 (Fla. Dist. Ct. App. 1989)
(holding that statute imposing up to 30 years imprisonment for
distribution of cocaine within 1000 feet of a school does not
"shock the conscience" or violate Eighth Amendment), aff'd,
558 So.2d 1 (Fla. 1990).
Defendants also argue that section 9 fails the
proportionality test because it punishes the defendant for
events that are out of the defendant's control and thus do
not reflect the defendant's culpability. Defendants contend
that the differential of punishment between two equally
innocent defendants because of what appears to be the
happenstance of death is so arbitrary and unfair as to
constitute cruel and unusual punishment. But obviously the
same can be said for any strict liability criminal statute,
including felony murder, because all of them contain the seeds
of differential treatment based on result and regardless of
state of mind. Added penalties based on result are common in
the criminal law and they have never been thought to create
constitutional violations of Cruel and Unusual Punishment
Clause. As the United States Supreme Court has stated:
[T]he assessment of harm caused by the defendant as
a result of the crime charged has understandably
been an important concern of the criminal law, both
in determining the elements of the offense and
determining the appropriate punishment. Thus, two
equally blameworthy criminal defendants may be
guilty of different offenses solely because their
acts cause differing amounts of harm.
[Payne v. Tennessee,
501 U.S. 808, ___,
111 S. Ct. 2597, 2605,
115 L. Ed.2d 720,
731 (1991).]
The argument is not made any stronger by noting the potential for this difference based on what are alleged to be extremely remote consequences, a death resulting after numerous redistributions of the initial sale. Putting aside
the safety valve of the remoteness requirement that might
result in acquittal, the straightforward response is that all
that is involved is perhaps a greater degree of unfairness as
the death becomes more and more remote, but nothing
qualitatively different from the unfairness inherent whenever
two equally innocent or equally culpable defendants are
treated substantially differently because of the result.
We know of no case holding that a statute imposing strict
criminal liability constitutes cruel and unusual punishment.
Although the state of the law is less than settled, the
authorities are virtually unanimous in rejecting this kind of
claim under these circumstances. For instance, courts
interpreting the felony-murder rule as a strict liability
crime consistently maintain that it does not constitute cruel
and unusual punishment. State v. West,
862 P.2d 192, 205
(Ariz. 1993); People v. Rose,
227 Cal. Rptr. 570, 574 (Cal.
Ct. App. 1986); Goodseal, supra, 553 P.
2d at 286. But see
Roth & Sundby, supra at 478-85 (arguing that felony-murder
rule violates Eighth Amendment's prohibition of
disproportionate punishments). Similarly, statutory rape laws
that impose strict criminal liability have been found not to
violate the Eighth Amendment. E.g., Commonwealth v. Moore,
269 N.E.2d 636, 640 (Mass. 1971). Courts have reached the
same conclusion regarding statutes enhancing the punishment
for distribution of drugs when the distribution occurs within
a certain range of school property and they do so without
regard to whether the drug distributor knew of the school's
proximity. E.g., Commonwealth v. Alvarez,
596 N.E.2d 325,
330-31 (Mass. 1992).
Indeed, the only area of Eighth Amendment jurisprudence
in which the strict liability feature of a criminal sanction
appears to have any significance is capital punishment.
There, more stringent standards are necessary because the
death penalty, due to its "unusual severity . . . is in a
class by itself." Furman v. Georgia,
408 U.S. 238, 289,
92 S.
Ct. 2726, 2752,
33 L. Ed.2d 346, 378 (1972) (Brennan, J.,
concurring). In State v. Gerald,
113 N.J. 40 (1988), we held
that the "cruel and unusual punishments" clause of our state
constitution did not permit imposing the death penalty on a
defendant who did not intend to kill anyone but had been
convicted of capital murder for purposely or knowingly
inflicting serious bodily injury resulting in death. Id. at
89. Instead, we determined that the only conduct that would
justify the death penalty is purposeful or knowing murder.See footnote 3
Ibid. Similarly, in Enmund, supra, the United States Supreme
Court held that without some connection with the murder other
than his mere presence at the scene, a defendant could not be
sentenced to death under the felony-murder rule. 458 U.S. at
800-01, 102 S. Ct. at 3378-79, 73 L. Ed.
2d at 1154. But cf.
Tison v. Arizona,
481 U.S. 137, 158,
107 S. Ct. 1676, 1688,
95 L. Ed.2d 127, 145 (1987) (upholding death sentences for
defendants convicted of felony murder who lacked intent to
kill but played major role in commission of felony and acted
with reckless indifference to human life).
Related to defendants' argument that the potentially
different treatment results in cruel and unusual punishment is
their claim concerning the fundamental unfairness of the
punishment regardless of differences. The difference simply
makes it even worse. That claim is based on the asserted
unlikelihood of death resulting from ordinary drug
distribution. No figures are presented on which anyone could
rely, although defense counsel speculated that far fewer than
one tenth of one percent of all drug distribution transactions
result in death, and that the comparable figure for robberies
is one percent. The posited conclusion, not only that this
offense is distinguishable because of that greater
unlikelihood from felony murder, is that it is grossly unfair
and constitutes cruel and unusual punishment.
In response, we initially note that under the
felony-murder statute, the convicted felon, when death
results, receives a thirty-year term without parole
eligibility, but that under section 9 the presumptive term is
fifteen years, with parole eligibility likely to occur after
three. Thus, one convicted of felony-murder faces a much more
substantial sentence than one convicted under section 9.
Putting that comparison aside, however, legislatures are not
bound by any such statistical analysis. It is enough to find
that there is a substantial risk of death, that deaths do
occur, 37,000 "drug related deaths" in 1986 alone, U.S.
Department of Justice, Report on Drug Control: Implementation
of the Anti-Drug Act of 1986, at 26 (1987), and that the
conduct deterred by this allegedly grossly unfair punishment
seriously threatens the social fabric. We do not mean to
imply that a statistical showing will always be irrelevant in
this area, but when applied to section 9 and the evils
involved, it is almost irrelevant here, especially in view of
the fact that a significant number of deaths do result.
The strongest component of defendants' constitutional attack is their argument that section 9 is unconstitutionally vague. Specifically, defendants argue that the element that the death be not too remote is impermissibly vague, rendering section 9 unconstitutional.
"Clear and comprehensible legislation is a fundamental prerequisite of due process." Town Tobacconist v. Kimmelman, 94 N.J. 85, 118 (1983). Legislative enactments, civil or criminal, are void as violating due process if they are "so vague that persons `of common intelligence must necessarily
guess at its meaning and differ as to its application.'"
Ibid. (quoting Connally v. General Constr. Co.,
269 U.S. 385,
391,
46 S. Ct. 126, 127,
70 L. Ed. 322, 328 (1926)).
The prohibition against vague laws serves two independent
goals. First, vague laws are prohibited because they fail to
give adequate notice that certain conduct will put the actor
at risk of liability. "Vague laws may trap the innocent by
not providing fair warning." Grayned v. City of Rockford,
408 U.S. 104, 108,
92 S. Ct. 2294, 2299,
33 L. Ed.2d 227 (1972).
Second, vague laws create an unacceptable danger of arbitrary
and discriminatory enforcement of the law because they fail to
provide those charged with enforcing the law -- prosecutors,
judges and juries -- with sufficiently precise standards.
Ibid. Because of the greater penalties in criminal statutes,
courts subject criminal laws to sharper vagueness scrutiny
than they do civil laws. State v. Afanador,
134 N.J. 162, 170
(1993).
The vagueness charge here does not relate to the first
aspect of the doctrine. Necessarily, no drug distributor will
be influenced in his conduct, or be able to shape his conduct
to conform to the statute since by definition the distributor
has no control over the regulated results. No matter how
precisely the remoteness factor were defined, no drug
distributor could conform his conduct to assure compliance
because the law would still punish unintended and unforeseen
deaths, even if it were more narrowly circumscribed. A
different definition might make a defendant more or less
willing not to distribute drugs at all, but that is not the
aspect of vagueness that is referred to when it is claimed
that vagueness prevents defendants from conforming their
conduct to the law. Even if defendants did challenge that
aspect of vagueness, and argued that had they fully understood
their conduct created the potential for enhanced criminal
liability they would have desisted entirely, that claim would
be rebutted by the underlying premise of their actual argument
that section 9 creates almost limitless liability. Thus, our
"vagueness" analysis focuses on the risk of arbitrary or
discriminatory enforcement of section 9.
A statute may be challenged as either facially vague or
vague "as-applied." State v. Cameron,
100 N.J. 586, 593
(1985). A statute is facially vague only if it is vague in
all its applications, while a statute is vague as applied only
if it is vague when applied to the circumstances of a specific
case. Ibid. Therefore, if a statute is not vague when
applied to a certain case, the statute will survive a
vagueness challenge despite the fact that it may be vague in
other applications. Id. at 593-94.
The part of section 9 said to be unconstitutionally vague
provides that a defendant shall not be convicted unless the
State proves beyond a reasonable doubt that the resulting
death was "not too remote in its occurrence" and "not too
dependent upon conduct of another person . . . as to have a
just bearing on the defendant[s'] liability." N.J.S.A.
2C:35-9d. In both these cases we can fairly say that whatever
doubts or vagueness might otherwise arise because of the
indefiniteness of the remoteness element, they are not present
here. Putting aside for the moment the victim's conduct, no
case could be more direct than these two or more certain in
the absence of any conceivable definition of remoteness:
Maldonado provided heroin to Dunka, he died from the
ingestion; Rodriguez provided cocaine to Bennett, he died from
the ingestion. Therefore, because the remoteness element is
not vague as applied to the two sets of circumstances
presented here, defendants' vagueness challenges fail even
though the statute may be vague in other applications.
However, given the importance of the matter and the probable
recurrence of the contention, we choose to deal with the
possible vagueness of section 9's "not too remote" element in
other applications. We hold on the basis of sound policy that
the "not too remote" element survives the facial vagueness
challenge here and all vague as-applied claims in this case.
First, we note that the "not too remote" element is found
in many other areas of the criminal law; thus, a finding that
the "not too remote" element is vague would have consequences
reaching far beyond section 9. Substantially similar
remoteness exculpation is found in our construction of the
felony-murder statute, Martin, supra, 119 N.J. at 32, and,
potentially at least, in every single offense defined by the
Code because, under certain circumstances, whether the offense
requires knowing, purposeful, reckless, or negligent conduct,
the similar remoteness element may come into play. See
N.J.S.A. 2C:2-3b,c (defining causation for most criminal
offenses). The remoteness element protects the defendant in
all of these cases, but whether constitutionally required or
not, like any other element its vagueness could result in
invalidity. Thus, if defendants are correct and section 9's
"not too remote" element is unconstitutionally vague, then,
necessarily, the felony-murder rule and the general causation
elements found in N.J.S.A. 2C:2-3b,c would also be
unconstitutional.
The adoption of the remoteness element by the Legislature
and by this Court in these two most important applications, -
one affecting practically every offense under the Code and the
other affecting felony murder -- is just a most practical and
important judgment on the part of all branches of government
on the desirability and ultimate fairness of the remoteness
exculpation, quite inconsistent with notions of
unconstitutional vagueness. That is not enough, however, for
as far as we know the provisions have never been judicially
tested either here or elsewhere. Some analogous cases exist,
however, but ultimately we sustain the requirement against
this challenge on grounds of sound policy and the inherent
limitation of language when applied to the circumstances that
"remoteness" was intended to address.
We concede the basic correctness of defendants' initial
contention: exculpation of defendants on the ground that the
result for which they would otherwise be liable was too remote
to make such liability just is indefinite, indeed considerably
so. If the remoteness is expressed in terms of the expiration
of time between the act and the result, how long must it be
before it is remote; if in terms of space, how far in order to
be remote; if in terms of cause and effect, how many other and
what kind of causes must there be; and if in terms of
difference from what was intended, how much and in what ways
must the actual result differ from what was intended? Despite
the indefiniteness of the remoteness limitation on liability,
however, fairness seems to require some such limitation on a
defendant's liability. Thus, a problem arises: how do we
limit criminal liability so that defendants are not unjustly
punished without creating an intolerable amount of vagueness.
Two simple examples will provide a sense of the problem.
In the felony-murder context, the example often given is that
of the bank robber who is charged with causing the death of
the teller who pressed the alarm button on the bank robber's
entry and, because of defective wiring, was electrocuted in
the process. Model Penal Code § 2.03 comment 4 (1985). Under
felony-murder analysis the robber would be guilty of murder
unless some provision allowed the jury to exonerate him for
deaths that were so unexpected, unanticipated, so unlikely to occur in the ordinary course of events as to be characterized as too remote to have a "just bearing" on his criminal responsibility. Another example, in a murder context, is the example of the defendant who fired his rifle at the victim, then riding a horse, intending to kill her, but missed; the victim ultimately died as a result of the shot when the horse bolted and ran away, fatally injuring the rider. Model Penal Code § 2.03 comment 2 (1985). The possibilities of such adventitious outcomes, not simply in these clear terms of unusual occurrences but of lengthy causation sequences, not necessarily strange, but unusually extended, with concurrent and contributing causes, are limitless. Our strong "sense of justice" requires us to consider the remoteness of such adventitious outcomes when determining criminal liability, but our inability to express what feature of unusual or extended causal chains affects our sense of justice makes developing a precise and definite standard that will accommodate our sense of justice difficult, and we have found none better than the "too remote to have a just bearing" standard. Correcting the indefiniteness of the language so that it will be more definite when applied to the bank alarm or horse bolting cases will leave us with a solution that is unsatisfactory for innumerable other cases. Whether the context is a drug death prosecution, a felony-murder prosecution, or prosecution for any crime in which the remoteness aspects of causation come
into play under N.J.S.A. 2C:2-3b or c, no clear answer exists.
The only practical standard is the jury's sense of justice.
The drafters of the Model Penal Code resolved the
conflict between the desirability of limiting criminal
liability for results otherwise falling within the law's
prohibition but whose occurrence was so far from the ordinary
or expectable as to leave doubt about the justice of imposing
such liability, and the impossibility of fashioning language
to define the extent of such limitation in a way to assure
acceptably consistent application by adopting the "too remote
to have a just bearing" language. Model Penal Code
§ 2.03(2)(b), (3)(b) (1985). They apparently agreed on the
need for some limitation on criminal liability just as is
imposed on civil liability in negligence cases, and they found
that the usual method of such limitation -- liability only for
"proximate" results -- was unsatisfactory. Model Penal Code
§ 2.03 comment 4 (Tentative Draft No. 4 1955) (rem