Virginia LAMBERT, Appellant,
The PEOPLE OF THE STATE OF CALIFORNIA.
Supreme Court of the United States
355 U.S. 225 (1957)
[p. 226] Mr. Justice DOUGLAS
delivered the opinion of the Court.
of the Los Angeles Municipal Code defines 'convicted person' as follows:
'Any person who, subsequent to January 1, 1921,
has been or hereafter is convicted of an offense punishable as a felony in the State of California, or who has been or who
is hereafter convicted of any offense in any place other than the State of California, which offense, if committed in the
State of California, would have been punishable as a felony.'
Section 52.39 provides
that it shall be unlawful for 'any convicted person' to be or remain in Los Angeles for a period of more than five days without
registering; it requires any person having a place of abode outside the city to register if he comes into the city on five
occasions or more during a 30-day period; and it prescribes the information to be furnished the Chief of Police on registering.
makes the failure to register a continuing offense, each day's failure constituting a separate offense.
on suspicion of another offense, was charged with a violation of this registration law. The evidence showed that she
had been at the time of her arrest a resident of Los Angeles for over seven years. Within that period she had been convicted
in Los Angeles of the crime of forgery, an offense which California punishes as a felony. Though convicted of a crime
punishable as a felony, she had not at the time of her arrest registered under the Municipal Code. At the trial, appellant
[p. 227] asserted that s 52.39 of the Code denies her due process of law and other rights under the Federal Constitution,
unnecessary to enumerate. The trial court denied this objection. The case was tried to a jury which found appellant
guilty. The court fined her $250 and placed her on probation for three years. Appellant, renewing her constitutional objection,
moved for arrest of judgment and a new trial. This motion was denied. On appeal the constitutionality of the Code
was again challenged. The Appellate Department of the Superior Court affirmed the judgment, holding there was no merit
to the claim that the ordinance was unconstitutional. The case is here on appeal. 28 U.S.C. s 1257(2), 28 U.S.C.A. s
1257(2). We noted probable jurisdiction, 352 U.S. 914, 77 S.Ct. 218, 1 L.Ed.2d 121, and designated amicus curiae to
appear in support of appellant. The case having been argued and reargued, we now hold that the registration provisions
of the Code as sought to be applied here violate the Due Process requirement of the Fourteenth Amendment.
provision, carrying criminal penalties, applies if a person has been convicted 'of an offense punishable as a felony in the
State of California' or, in case he has been convicted in another State, if the offense 'would have been punishable as a felony'
had it been committee in California. No element of willfulness is by terms included in the ordinance nor read into it by the
California court as a condition necessary for a conviction.
We must assume that
appellant had no actual knowledge of the requirement that she register under this ordinance, as she offered proof of this
defense which was refused. The question is whether a registration act of this character violates due process where it
is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability
of such knowledge.
[p. 228] We do not
go with Blackstone in saying that 'a vicious will' is necessary to constitute a crime, 4 Bl.Comm. [p. 21], for conduct alone
without regard to the intent of the doer is often sufficient. There is wide latitude in the lawmakers to declare an offense
and to exclude elements of knowledge and diligence from its definition. See Chicago, B. & Q.R. Co. v. United States,
220 U.S. 559, 578, 31 S.Ct. 612, 617, 55 L.Ed. 582. But we deal here with conduct that is wholly passive--mere failure
to register. It is unlike the commission of acts, or the failure to act under circumstances that should alert the doer
to the consequences of his deed. Cf. Shevlin-Carpenter Co. v. State of Minnesota, 218 U.S. 57, 30 S.Ct. 663, 54 L.Ed.
930; United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604; United States v. Dotterweich, 320 U.S. 277, 284, 64
S.Ct. 134, 138, 88 L.Ed. 48. The rule that 'ignorance of the law will not excuse' (Shevlin- Carpenter Co. v. State of
Minnesota, supra, 218 U.S. at page 68, 30 S.Ct. at page 666) is deep in our law, as is the principle that of all the powers
of local government, the police power is 'one of the least limitable.' District of Columbia v. Brooke, 214 U.S. 138, 149,
29 S.Ct. 560, 563, 53 L.Ed. 941. On the other hand, due process places some limits on its exercise. Engrained in our
concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance
to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties
are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere
failure to act. Recent cases ullustrating the point are Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,
70 S.Ct. 652, 94 L.Ed. 865; Covey v. Town of Somers, 351 U.S. 141, 76 S.Ct. 724, 100 L.Ed. 1021; Walker v. City of Hutchinson,
352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178. These cases involved only property interests in civil litigation. But
the principle is equally appropriate where a person, wholly passive and unaware of any wrongdoing, is brought to the bar of
justice for condemnation in a criminal case.
[p. 229] Registration
laws are common and their range is wide. Cf. People of State of New York ex rel. Bryant v. Zimmerman, 278 U.S.
63, 49 S.Ct. 61, 73 L.Ed. 184; United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989; United States v. Kahriger,
345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754. Many such laws are akin to licensing statutes in that they pertain to the regulation
of business activities. But the present ordinance is entirely different. Violation of its provisions is unaccompanied
by any activity whatever, mere presence in the city being the test. Moreover, circumstances which might move one to
inquire as to the necessity of registration are completely lacking. At most the ordinance is but a law enforcement technique
designed for the convenience of law enforcement agencies through which a list of the names and addresses of felons then residing
in a given community is compiled. The disclosure is merely a compilation of former convictions already publicly recorded
in the jurisdiction where obtained. Nevertheless, this appellant on first becoming aware of her duty to register was given
no opportunity to comply with the law and avoid its penalty, even though her default was entirely innocent. She could
but suffer the consequences of the ordinance, namely, conviction with the imposition of heavy criminal penalties thereunder.
We believe that actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure
to comply are necessary before a conviction under the ordinance can stand. As Holmes wrote in The Common Law, 'A law
which punished conduct which would not be blameworthy in the average member of the community would be too severe for that
community to bear.' Id., at 50. Its severity lies in the absence of an opportunity either to avoid the consequences
of the law or to defend any prosecution brought under it. Where a person did not know of the duty to register and where
there was no proof of the probability of such knowledge, he may not be convicted consistently [p. 230] with due process.
Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language
foreign to the community.
Mr. Justice BURTON,
dissents because he believes that, as applied to this appellant, the ordinance does not violate her constitutional rights.
Mr. Justice FRANKFURTER,
whom Mr. Justice HARLAN and Mr. Justice WHITTAKER join, dissenting.
The present laws
of the United States and of the forty-eight States are thick with provisions that command that some things not be done and
others be done, although persons convicted under such provisions may have had no awareness of what the law required or that
what they did was wrongdoing. The body of decisions sustaining such legislation, including innumerable registration
laws, is almost as voluminous as the legislation itself. The matter is summarized in United States v. Balint, 258 U.S.
250, 252, 42 S.Ct. 301, 302, 66 L.Ed. 604: 'Many instances of this are to be found in regulatory measures in the exercise
of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment
rather than the punishment of the crimes as in cases of mala in se.'
Surely there can
hardly be a difference as a matter of fairness, of hardship, or of justice, if one may invoke it, between the case of a person
wholly innocent of wrongdoing, in the sense that he was not remotely conscious of violating any law, who is imprisoned for
five years for conduct relating to narcotics, and the case of another person who is placed on probation for three years on
condition that she pay $250, for failure, as a local resident, convicted under local law of a felony, to register under [p.
231] a law passed as an exercise of the State's 'police power.' [n. *] Considerations of hardship often lead courts, naturally
enough, to attribute to a statute the requirement of a certain mental element--some consciousness of wrongdoing and knowledge
of the law's command--as a matter of statutory construction. Then, too, a cruelly disproportionate relation between
what the law requires and the sanction for its disobedience may constitute a violation of the Eighth Amendment as a cruel
and unusual punishment, and, in respect to the States, even offend the Due Process Clause of the Fourteenth Amendment.
* This case does not
involve a person who, convicted of a crime in another jurisdiction, must decide whether he has been convicted of a crime that
'would have been punishable as a felony' had it been committed in California. Appellant committed forgery in California,
and was convicted under California law. Furthermore, she was convicted in Los Angeles itself, and there she resided
for over seven years before the arrest leading to the present proceedings.
But what the
Court here does is to draw a constitutional line between a State's requirement of doing and not doing. What is this
but a return to Year Book distinctions between feasance and nonfeasance--a distinction that may have significance in the evolution
of common-law notions of liability, but is inadmissible as a line between constitutionality and unconstitutionality.
One can be confident that Mr. Justice Holmes would have been the last to draw such a line. What he wrote about 'blameworthiness'
is worth quoting in its context:
'It is not intended to deny that criminal liability, as well as civil, is founded on
blameworthiness. Such a denial would shock the moral sense of any civilized community; or, to put it another way, a
law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that
community to bear.' (This passage [p. 232] must be read in the setting of the broader discussion of which it is an essential
part. Holmes, The Common Law, at 49--50.)
If the generalization
that underlies, and alone can justify, this decision were to be given its relevant scope, a whole volume of the United States
Reports would be required to document in detail the legislation in this country that would fall or be impaired. I abstain
from entering upon a consideration of such legislation, and adjudications upon it, because I feel confident that the present
decision will turn out to be an isolated deviation from the strong current of precedents--a derelict on the waters of the
law. Accordingly, I content myself with dissenting.