1 INTRODUCTION

Of the many defences sufficiently important to be included in the influential Model Penal Code, surely the de minimis defence has attracted the least scholarly attention and generated the fewest judicial opinions.¹ Despite its potential availability in a broad range of circumstances, treatises often neglect this defence altogether. Entire (p. 329 ) monographs are written about self-defence, insanity, entrapment, and the like. But a search of legal periodicals reveals only a small handful of articles that focus on this mysterious plea.² Most of these articles presuppose a utilitarian, cost-benefit perspective on liability and punishment, and thus are only marginally relevant to the desert-based approach I invoke here. My aim is to correct this oversight by critically examining the de minimis defence from the standpoint of desert—if, indeed, it has a desert base and is properly categorized as a defence at all. Despite reaching few firm conclusions, my work is pioneering almost by default. But my objective is not merely to fill a lacuna among criminal law commentators by examining a neglected topic. I hope to demonstrate that de minimis is significant in its own right, but my inquiry is valuable largely because of what it reveals about other doctrines and principles in criminal theory that have attracted far more scrutiny from philosophers of law. I aim to establish that careful thought about de minimis helps to shed light on such central and fundamental topics as criminalization, the rule of law and the parameters of discretion, the relationship between morality and law, the structure of wrongdoing, the contrast between offences and defences, the concepts of justification and excuse, and even the nature of retributive justice itself.

2 PRELIMINARY MATTERS

Before turning to these broader topics, some preliminary matters must be addressed. In what follows, my discussion focuses on what I take to be (and what I will subsequently call) true de minimis rather than on the particular text of section 2.12 of the Model Penal Code. My reasons are simple. By its own terms, section 2.12 creates a defence, and de minimis may not always function as a defence. Moreover, section 2.12 contains what I take to be four separate but loosely related defences that are misleadingly assimilated in a single statute titled ‘De Minimis Infractions’. Perhaps only one and at most two of these distinct defences can plausibly be construed as a formulation of de minimis. Section 2.12(1) applies when the defendant's conduct is ‘within a customary license or tolerance’, and section 2.12(3) bars liability when the defendant's conduct ‘presents such other extenuations that it cannot reasonably be regarded as envisaged by the legislature in forbidding the offence’.³ Fascinating (p. 330 ) though these (equally neglected) provisions may be, there need be nothing minimal about the extent of the harm or evil caused when either section 2.12(1) or section 2.12(3) is invoked. Thus I will confine almost all of my remarks to section 2.12(2)—which is the sole part of the statute that could be said to create a true de minimis defence.⁴

Section 2.12(2) provides that ‘the court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offence and the nature of the attendant circumstances, it finds that the defendant's conduct … did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offence or did so only to an extent too trivial to warrant the condemnation of conviction’.⁵ Each clause in this disjunctive provision creates a separate defence, only the second of which is clearly described as de minimis. It is one thing to deny that the defendant's conduct caused or threatened any of the harm or evil sought to be prevented by the law defining the offence, and quite another to admit that her conduct did cause or threaten that very harm or evil, but did so only to an extent too trivial to permit a conviction. Why would anyone describe the former phenomenon as de minimis? In a true de minimis situation, the harm or evil is caused, albeit to a minor degree. To avoid possible confusion, I will refer only to cases that arise under the second clause of section 2.12(2) as instances of true de minimis.

When the first clause of section 2.12(2) is invoked, the defendant alleges that the harm or evil to be avoided by the offence is not caused or threatened at all. De minimis or not, such circumstances create a powerful case for exculpation—even more powerful than true de minimis. The example provided by the draftsmen involves an ‘unconsented-to contact’ that ‘might constitute a technical assault in some jurisdictions, even though the harm that was threatened and that in fact occurred was too trivial for the law to take into account’.⁶ Although a case in which the harm or evil to be prevented by the statute did not occur to any degree provides an even more powerful basis for exculpation, an intuitive basis for acquittal is also compelling in a true de minimis situation. Liability in this situation would be unjust, even though persons may disagree about exactly what is unjust about it. In section 6 of this chapter I will attempt to support this intuition and suggest why a de minimis principle is needed. As we will see, the rationale I will provide—although not especially original—has important but easily overlooked implications for a large body of criminal law doctrine. Before turning to this issue, however, several additional observations about the Code's de minimis provision are helpful.

First, I subsequently omit the ‘ … or evil’ part of section 2.12(2) when referring to the statutory codification of a true de minimis defence. Part of my reason is simplicity. It is not entirely clear what the ‘evil’ disjunct is designed to add to the ‘harm’ (p. 331 ) disjunct. Perhaps they are redundant. A second reason for deleting reference to evil is my contention that conduct is best construed as de minimis when its degree of wrongfulness is too minimal to justify a criminal conviction.⁷ This contention may seem peculiar in an argument for retaining that part of the statute that refers to harm. After all, wrongfulness and harm are distinct. Many and perhaps most types of acts, however, owe much of their wrongfulness to their tendency to cause harm; their wrongfulness consists solely or partly in their harmfulness. A true de minimis defence is most easily granted when the wrongfulness of the offence is too trivial to warrant a conviction because the amount of harm caused (or risked) is too small to justify the imposition of criminal liability.⁸ Thus I will continue to refer to harm in my examination of de minimis.

Notice also that no one can hope to decide whether a given crime is de minimis unless he is able to identify the particular harm a given statute is designed to prevent. How do we know what objective given statutes are intended to achieve? Often the answer is apparent. Statutes proscribing core offences such as murder and rape are designed to prevent the obvious harms caused by these crimes. In many cases, however, the harm a statute is designed to prevent is much less clear. Unfortunately, legislators have no duty to inform citizens of the harms they intend their penal laws to proscribe. Courts are generally unwilling to attribute a purpose to a piece of legislation, and thus are reluctant to find that the application of a given statute to a particular situation will not facilitate its objective. Judgments about whether a crime is de minimis may remain contested in the absence of agreement about the nature of the harm a statute is designed to prevent.

Although the two clauses of section 2.12(2) are easy to distinguish analytically, the difficulty of identifying the harm a statute is designed to prevent may contribute to uncertainty about which clause is invoked in a particular case in which the defence is potentially available. In some contexts, the defendant cannot cause the harm or evil the statute seeks to prevent precisely because of the sense in which his offence is too trivial to produce it. The offence of drug possession illustrates this phenomenon. Consider a defendant who is arrested and prosecuted after non-usable traces of drugs are vacuumed from the carpet of his house or car. If the point of a statute proscribing drug possession is to prevent persons from using a drug for a given purpose—say, to produce intoxication—the defence should be applicable when the (p. 332 ) amount possessed is too miniscule to cause that psychological effect.⁹ Admittedly, this defence seldom succeeds,¹⁰ and some statutes contain language that seems to disallow it. Some offences attach liability to the intention of the defendant rather than to a result he causes. These offences may render immaterial the fact that the amount of a drug is too small to produce an effect.

Next, it is noteworthy that codifications of de minimis are fairly uncommon throughout the Anglo-American world. Despite the remarkable success of the Model Penal Code in stimulating statutory reform among the 50 states, only four—New Jersey, Maine, Hawaii, and Pennsylvania—have actually adopted a true de minimis defence.¹¹ The absence of comparable language in the vast majority of state penal codes is peculiar. After all, de minimis is hardly a strange idea with ties to a controversial political ideology. Nor is it of recent vintage.¹² Even a child knows something is amiss when she is punished for a trivial violation of a rule. The absence of a de minimis defence would seem to increase the probability of injustice. As commentators recognized over 50 years ago, if criminal statutes were enforced as ‘precisely and narrowly laid down, the penal law would be ordered but intolerable’.¹³ The potential for mischief is even greater today than when the Model Penal Code was drafted. The recent trend has been to enact exceedingly broad and open-ended statutes that legislators do not expect to be enforced as written. Greater numbers of crimes reaching a broader range of conduct magnify the opportunities for unjust convictions.¹⁴ Under these circumstances, the absence of something resembling a de minimis defence seems unthinkable. We know that few employees who commit petty theft against their employers are actually punished. How do we achieve results we take for granted when no explicit provision of law requires exculpation? In other words, how do states manage to avoid injustice without a de minimis defence?

Presumably, states circumvent the need for a true de minimis defence largely through exercises of official discretion. Police and prosecutors inevitably enjoy vast discretionary powers as a result of the extraordinary breadth of penal laws. These officials can hardly proceed in every case in which a person is thought to have violated the literal terms of a law, and thus have little choice but to use their judgment (p. 333 ) about which conduct is worth arresting and prosecuting. Although the principles they employ in exercising their discretion are not always clear, it seems obvious that police and prosecutors fail to arrest or to bring charges in circumstances they assess to be de minimis. Thus injustice is more readily avoided than in a system in which little or no discretion is entrusted to these officials.

If few jurisdictions expressly contain statutory language modelled after section 2.12(2), what actually happens to defendants in those rare and regrettable circumstances in which they are arrested and prosecuted for causing a minor harm? Are such persons more likely to be convicted and punished than in jurisdictions that contain a true de minimis defence? Reliable data on this important question are unavailable. But one reason to be sceptical that the outcomes in these two kinds of jurisdictions differ is that few defendants actually succeed on a de minimis plea even where the defence exists. No one should doubt, however, that many prosecutions that involve de minimis infractions are resolved through less visible means—whether or not an explicit defence is recognized.¹⁵

3 THE ROLE OF DE MINIMIS

Few would deny that de minimis does and should affect sentences. Ceteris paribus, offences that cause minor harms should be punished less severely. But it is crucial to appreciate that de minimis may play at least three distinct but related roles in a theory of criminal liability prior to the sentencing stage. Each of these three roles admits of subtle variations and occasionally blur into one another. First and perhaps most obviously, de minimis may function as a constraint on criminalization. Second, de minimis—or, more precisely, the contrary of de minimis—may appear as an element of a criminal offence. Third, de minimis may serve as a true defence from liability. Criminal theorists have reason to carefully distinguish each of these three roles. Among the ultimate objectives of a theory of de minimis is to specify when this exculpatory consideration should play one role rather than another. Unfortunately, my own efforts will fall short of this aspiration. My more modest goal is to identify some of the factors that should be brought to bear in deciding which of these roles de minimis should play in given situations. One reason I will be unable to reach the more ambitious objective is that theorists are bound to disagree about some of (p. 334 ) the moral intuitions I will invoke in particular cases.¹⁶ Although I will eventually attempt to support some of these intuitions, I am aware that the entire topic of de minimis is riddled with intractable controversy. No starting point in a theory of de minimis is secure and capable of supporting a foundation. Some theorists are likely to reject its exculpatory force altogether.

I will briefly describe each of the three roles de minimis might play in a theory of criminal liability. First, de minimis is among the cornerstones of a theory of criminalization, serving to limit the kinds of penal offences legislatures should enact. As we will see, de minimis concerns often arise when a particular instance of criminal conduct is trivial, even though most other acts of that type are not. Some acts of theft are petty, for example, even though theft in general is relatively serious. When a statute proscribes conduct that is always innocuous, however, de minimis is applicable in its first and most fundamental sense. If a problem is trivial, the heavy hand of a punitive sanction is not an appropriate mechanism to address it. A social concern may be small and thus not require a penal solution for at least two reasons, only the second of which involves a genuine de minimis rationale. In the relevant sense, a problem is small not because few persons engage in the activity that causes it, but regardless of the number of such persons. If the problem is insufficiently serious to justify subjecting persons to punishment, a genuine de minimis rationale entails that a penal statute should not be created. Statutes that proscribe types of minor harms should not have been enacted in the first place.

Clearly, perceptions of the seriousness of given harms may evolve over time. When an existing law is designed to prevent a type of harm that comes to be regarded as trivial, one would expect de minimis concerns to bring about de facto if not de jure change. One of the main reasons that offences fall into desuetude is because the community has ceased to believe they are sufficiently serious. I suspect that the non-enforcement of such crimes as adultery and fornication (in jurisdictions where they still exist) is explained partly by applications of a de minimis principle. The law in action is bound to reflect judgments about de minimis, even when the law on the books does not.

It is hard to offer examples of de minimis offences that should not have been enacted, since many acts that should not be punished are tokens of types that are legitimately criminalized. Consider a law proscribing the defacing of library books. Most citizens would differentiate between a borrower who uses a pencil to place a faint dot next to a memorable passage in a paperback and a patron who rips whole pages from valuable hardcover books. In light of this phenomenon, can any examples of de minimis statutes be identified? The best candidates would be laws utilizing (p. 335 ) verbs that necessarily describe relatively trivial behaviour. A statute prohibiting conduct that causes annoyance, irritation, or inconvenience, for example, would fail a de minimis test; serious harms simply do not satisfy these descriptions—although they might be useful to prosecutors in plea-bargaining. In any event, I am unsure whether any existing law proscribes a type of activity for which no token is serious.

De minimis plays a second role in the criminal law: its contrary may be an element of a criminal offence. This function might be performed implicitly. Absent language to the contrary, it is arguable that all offences should be construed to include clauses that exculpate de minimis offenders. This contention might be defended by a principle of statutory interpretation that forbids laws to be applied to reach absurd results.¹⁷ But are de minimis convictions really absurd? This second function is performed with less controversy when such clauses are explicit. A given offence might expressly provide that violations must exceed a given threshold of harm. At least two distinct means are available to ensure that statutes cannot be construed to punish minimal harms. First, a statute might specify exactly what quantum of harm is needed before a violation occurs. This result is achieved most readily when harms are easily quantifiable. Consider, for example, a noise (or pollution) ordinance. Obviously, activities that cause some amount of noise are necessary and beneficial. Ideally, then, legislators should provide guidance by specifying exactly how much noise—in decibels—persons are permitted to make.

When levels of harm resist simple quantification, however, it is nearly impossible to describe what amount of harm is needed before an offence occurs. In these situations, a second device can be used to ensure that statutory infractions exceed a given threshold. The offence itself might explicitly require violations not to be de minimis, without specifying exactly which actions do or do not qualify. A statute might include a vague standard by stipulating that an infraction must be serious, severe, substantial, or the like. A probable example is the Federal Copyright Law. The complex scheme governing copyright infringements creates an exception for ‘fair use’, defined in part by reference to ‘the amount and substantiality of the portion used’.¹⁸ Although this exception does not literally employ the term ‘de minimis’, it seems reasonable to construe it to permit infringements deemed to be trivial.¹⁹ Much of the recent commentary about de minimis addresses this second role.²⁰ Theorists have struggled to draw the line beyond which a copyright infringement becomes substantial.²¹ The fact that the bulk of legal commentary on de minimis seeks to answer (p. 336 ) such questions demonstrates the remarkable extent to which a true de minimis defence—the third role I will eventually discuss—is invoked so infrequently.

On some occasions, statutes are construed to contain language said to require the conviction of the de minimis offender. As we have seen, for example, courts have wrestled with the question of whether to punish persons for possessing quantities of drugs too small for the body to detect.²² Some judges have purported to resolve this issue through statutory interpretation. Laws prohibiting the possession of ‘any controlled substance’ or a controlled substance ‘in any amount’ have been construed to bar the de minimis plea.²³ I suspect, however, that statutory interpretation does not wholly explain the result in these cases. When a drug offender alleges de minimis, courts sometimes respond that: ‘narcotics are contraband and dangerous, causing untold harm to users and to the public by illegal use. A more liberal interpretation favorable to drug addicts cannot reasonably be given.’²⁴ Such remarks raise the question of whether the commission of some types of crime cannot be de minimis. If so, what properties must a crime possess before de minimis pleas are ruled out? One would think that the most serious crimes—murder and rape, for example—might qualify. Drug possession, however, does not seem especially serious.²⁵ Moreover, I have pointed out that even though a type of offence is serious, it hardly follows that each instance of that type must be serious as well. In principle, it is hard to see why any crime (that does not explicitly allow minor infractions) should be construed to forbid an acquittal on de minimis grounds. I suspect that cases of de minimis rapes and murders are possible, although examples are bound to generate controversy.

De minimis plays yet a third conceptually distinct role in the criminal law. Suppose a given statute prohibits a type of harm that is normally serious and does not contain language governing the trivial offender (one way or the other). Still, no defendant should be convicted if his particular conduct causes only a trivial amount of the harm the law is designed to prevent. Most of my subsequent comments will focus on this third and final role—which alone is properly described as a true de minimis defence.

It is important to notice that de minimis cannot play this third role—as a true defence—when it plays its second role, and its contrary is included as an explicit element of a criminal offence. Suppose, for example, that a statute forbids lenders to charge a rate of interest greater than 18 per cent. Defendants will have an uphill struggle in contending that their lending is de minimis when it exceeds, however trivially, the specified threshold. In addition, a de minimis defence is unavailable (p. 337 ) when statutes are graded. Suppose a law specifies that a defendant commits grand larceny when he steals property worth $100,000 or more, and otherwise commits petty larceny. If a defendant steals property worth exactly $100,000, has he committed de minimis grand larceny so that his charge should be reduced to petty larceny? Obviously not. Once a clear numerical threshold has been established, no crimes beyond that level can be de minimis.

The fact that de minimis is hard to plead when statutes create a precise numerical threshold may help to explain the dearth of cases in which the defence is invoked for violations of speed limits. Intuitively, speed limits may seem to be among the very best examples of laws that should allow a de minimis defence. We all know that persons who drive faster than the speed limit by a single mph are almost never arrested or prosecuted. But if a statute expressly specifies that drivers may not exceed 35 mph, for example, it is problematic to argue that a speed of 36 is de minimis. Legislatures would have had no difficulty exempting persons who drive at this speed from liability. The fact that they stipulated 35 as the exact threshold is powerful evidence that they did not regard drivers who travel at 36 mph as qualifying for this defence.²⁶ If drivers should not be liable under these circumstances—as I am inclined to believe—the basis of their acquittal is probably not de minimis. Perhaps the ‘customary license or tolerance’ provision of section 2.12(1) provides a better rationale for acquittal than the true de minimis defence of section 2.12(2).

The defence of de minimis is unavailable even when statutes include a vague standard rather than a bright quantifiable line. Suppose that an offence imposes liability only when an act of littering, for example, is ‘substantial’, ‘serious’, or the like. Defendants are ineligible for sanctions when they produce insubstantial amounts of litter; those below that level would simply not be in violation of the statute and therefore would have no need for a defence. This point is important, since the contrary of de minimis is implicitly incorporated into statutory definitions of recklessness and negligence.²⁷ Both culpability terms require that defendants create a substantial risk of harm before liability may be imposed. Substantial risks, I assume, cannot be de minimis.²⁸ If a defendant who is otherwise reckless or negligent creates a risk that is not substantial, he has no need for a de minimis defence, as (p. 338 ) he has not breached the statute itself. Since the contrary of de minimis is implicitly incorporated into statutory definitions of recklessness and negligence, a true de minimis defence should be available only for crimes requiring the culpability of knowledge or purpose.

In describing de minimis as a true defence, I mean to ignore the most familiar rationale in its favour. Frequently, judicial proceedings involving a de minimis infraction are denounced as an inefficient use of judicial resources.²⁹ Clearly, the social costs of applying a legal rule to a particular infraction may outweigh their benefits, and a de minimis provision allows a criminal justice system to allocate its resources wisely. But even though this rationale for de minimis is sensible and important, I will not explore it further here. As I have indicated, I am interested in arguments of principle, that is, in the issue of whether defendants deserve to be acquitted for de minimis infractions. Although a defendant may complain if a court is using its resources inefficiently, his complaint cannot be couched in terms of desert. In what follows, I will investigate whether de minimis might be construed as a substantive defence—a defence to which persons are entitled as a matter of justice.³⁰ I continue to put utilitarian arguments aside.³¹

If the foregoing distinctions between the three possible roles played by de minimis are tolerably clear, we should inquire whether and under what conditions these distinctions are important. In what circumstances should the contrary of de minimis be an element of the offence and when should de minimis function as a true defence? What difference does it make which of these roles de minimis plays? Procedurally, of course, these distinctions can be crucial for the assignment of burdens of proof. But do these contrasts matter substantively? Unless the answer is affirmative, it is unclear why these distinctions should have any procedural significance. As I have indicated, I will not hazard a general answer to these difficult questions. The best way to make progress toward their resolution is by deciding whether and why the contrast between offences and defences is important. Thus this inquiry about de minimis plunges us directly to the heart of some of the most central topics in criminal law theory. To these issues I now turn.

(p. 339 ) 4 OFFENCES AND DEFENCES

Assume that a statute does not violate principles of criminalization by proscribing a trivial type of harm. De minimis might still play the second or third of the foregoing roles I have distinguished. Either its contrary may appear as an element of a criminal offence, or de minimis may serve as a true defence from liability. Which of these remaining roles should it play? Various proposals for distinguishing offences from defences appear to have very different implications for understanding the exculpatory significance of de minimis. To be sure, a few distinguished theorists have contended that this contrast is wholly irrelevant for substantive purposes.³² Nearly all commentators, however, concur that the distinction between offences and defences is normatively important. They disagree, however, about what is substantively significant about it, and thus about how this distinction should be drawn. I assume that all issues that are substantively material to liability must be relevant either to whether the defendant has committed an offence or to whether he has a defence for committing it. Careful thought about how to understand the significance of de minimis—whether it should be treated as a defence or whether its contrary should somehow be included in an offence—may help us to gain insight not only about this plea, but also about the contrast itself.

Some of the most distinguished criminal theorists have sought to show how the distinction between offences and defences should be drawn and why this contrast matters substantively. In what follows, I will briefly examine how thoughts about de minimis reflect on the merits of three such proposals. Unfortunately, the implications of these views for the categorization of de minimis are far from clear, and my attempts to apply their positions to questions about this plea involve enormous conjecture and speculation. Thus I say that each of these proposals to distinguish offences from defences appears to have very different implications for how de minimis might be understood.

It may be instructive to try to assess the implications of these three proposals for theft—a crime for which it seems intuitively plausible to suppose that a defendant should not be punished when his conduct is de minimis. If a theft involves property of exceptionally low value, a de minimis defence seems applicable.³³ In State v Smith, for example, a defendant was acquitted despite stealing three pieces of bubble-gum.³⁴ In State v Nevens, a defendant escaped liability when he took home a few items of (p. 340 ) fruit from an all-you-can-eat restaurant buffet.³⁵ Although I will try to support this intuition later, for the moment I will tentatively suppose that the above decisions are correct. I will use this supposition to assess scholarly attempts to contrast offences from defences. If the defendants in the above cases deserve to be exculpated, should the basis of their acquittal be located in the offence or in a defence? Admittedly, we need not reach the same answer for each and every situation involving de minimis in which we believe that exculpation is warranted. Still, a single example of a crime may be helpful both to understand and to evaluate the following three proposals to distinguish offences from defences.

George Fletcher was perhaps the first theorist to propose that the distinction between offences and defences matters for normative purposes. According to Fletcher, offence definitions should describe conduct that: ‘incriminates the actor in a given society at a given time … The minimal demand on the definition of an offense is that it reflects a morally coherent norm.’³⁶ These sketchy remarks are insightful, but are difficult both to interpret as well as to apply. Fletcher admits that ‘we find it hard’ to specify the precise ‘questions of degree’ that inevitably arise in deciding whether there exists a ‘coherent moral imperative’ against particular modes of conduct.³⁷

As I construe it, Fletcher's methodology for distinguishing offences from defences yields no single answer to whether de minimis should be treated as a defence or whether its contrary should be included in the definition of an offence. Uncertainty of application is not surprising here. The contrast between acts that are trivially wrongful and acts that are not wrongful at all is hard to draw. Thus I regard this uncertainty as an advantage of his view. In some contexts, like copyright, my own interpretation of ‘moral imperative’ is that we do not regard behaviour as incriminating at all when persons commit given de minimis infringements. As one court has noted:

most honest citizens in the modern world frequently engage, without hesitation, in trivial copying that, but for the de minimis doctrine, would technically constitute a violation of law. We do not hesitate to make a photocopy of a letter from a friend to show another friend, or of a favorite cartoon to post on the refrigerator … Waiters at a restaurant sing ‘Happy Birthday’ at a patron's table. When we do such things, it is not that we are breaking the law but unlikely to be sued given the high cost of litigation. Because of the de minimis doctrine, in trivial instances of copying, we are in fact not breaking the law.³⁸

If this judgment is correct, as I believe it to be, Fletcher's view entails that the contrary of de minimis should be included in the definition of the behaviour that (p. 341 ) constitutes a violation of copyright law. As I have indicated, existing copyright (apparently) does just that.

In other contexts, however, our judgments about the exculpatory significance of de minimis almost certainly differ. Consider my example of the theft of a small amount of merchandise. The act of stealing a piece of bubble-gum from a store unquestionably violates a coherent moral imperative, even though its degree of wrongfulness is minimal.³⁹ If so, the exculpatory significance of de minimis must be conceptualized as a true defence to this act of theft. Although there may be good reason not to recognize such a defence—a reason to which I will return—my attempt to apply Fletcher's proposal for contrasting offences from defences would not allow the contrary of de minimis to function as an element of the crime of theft.

Still other examples are hard to categorize either way. The parameters of what employees are permitted to take from their employers for personal use are vague.⁴⁰ Is it a ‘coherent moral imperative’ to forbid office managers, for example, from taking pens and pencils from their workplace to the home? Or do our norms permit such behaviour? As Fletcher anticipated, judgments about coherent moral norms may be ambivalent and unclear. If so, reasonable minds will differ about whether the contrary of de minimis should be treated as an element of the offence that prohibits such conduct or whether de minimis should be treated as a true defence.

Next, consider Antony Duff's novel proposal for distinguishing offences from defences. According to Duff, the contrast between offences and defences mirrors the contrast between responsibility and liability. Persons are responsible for that for which they may be made to answer, and it is fair to require them to answer in criminal court for a presumptive (or prima facie) wrong. Persons are liable when they lack a defence for a presumptive wrong for which they are responsible. A presumptive wrong, in turn, consists in conduct that individuals normally have categorical and conclusive reasons not to consider as options. Thus presumptive wrongs must be defined as wrongs for which persons will be convicted unless they can offer an exculpatory defence.⁴¹ Is conduct a presumptive wrong even when it is de minimis? In other words, should a defendant be required to answer in criminal court for his de minimis wrongs? If so, the exculpatory significance of de minimis must be treated as a true defence. If not, the contrary of de minimis must be included among the set of elements that comprise an offence.

Although the above question is tolerably clear, its answer is not. Superficially, at least, it seems that persons should never be made to appear in criminal court for a de minimis infraction. If someone engages in conduct that causes a trivial harm, it seems unjust to deem him responsible (in Duff's sense) and to require him to (p. 342 ) respond by pleading a defence on pain of liability. Unless I have misunderstood it, Duff's theory makes it hard to see why de minimis should ever be a true defence. To return to my example, suppose our bubble-gum thief is arrested and prosecuted. If his conduct should not be punished, as I have tentatively claimed is intuitively correct, it must be because he should not be required to answer for it in criminal court. What could this defendant possibly say to a judge that was not already known? If I am correct, legislators who implement Duff's methodology for contrasting offences from defences are well advised to include the contrary of de minimis in any offence for which it has exculpatory significance. In other words, all statutes for which de minimis is exculpatory should be defined analogous to copyright law. A defendant whose conduct causes a trivial harm should not be treated as having committed a crime in the first place.

Finally, consider John Gardner's view that the contrast between offences and defences should be drawn by deciding what we have reasons against and what we have reasons for.⁴² According to this conception, offences consist in what the law gives us reason not to do, whereas defences consist in what the law gives us reason to do. Applications of this test, like those of its rivals, generate borderline cases in which reasonable minds differ. Inasmuch as we have difficulty deciding whether to treat a given factor as material to performing an action or as material to abstaining from it, we will be unsure whether that factor belongs in an offence or should be treated as a defence. Still, this test does not seem unclear in its categorization of de minimis. In the vast majority of contexts, it would be bizarre to say that persons had reasons to commit a de minimis crime. Surely the law does not give our petty thief reason a reason in favour of stealing bubble-gum. If defences consist solely of conduct we have reason to perform, and the contrast between offences and defences is drawn pursuant to Gardner's proposal, it is difficult to comprehend why de minimis should ever function as a true defence.

So far, Gardner's methodology yields the same results as Duff's. But applications of Gardner's proposal appear to produce a more radical conclusion. If he is correct, it is not clear why the contrary of de minimis should ever function as an element of a crime. Although there may be a handful of exceptions to this generalization—the ‘Happy Birthday’ example might qualify—in most contexts persons have reason not to commit even those crimes that are de minimis. Their reasons not to commit a de minimis offence are weaker than their reasons not to cause substantial harm, but they still have reason not to commit either one. If offences consist solely of conduct we have reason not to perform, the contrary of de minimis should no more be included in an offence than de minimis should be treated as a defence. On Gardner's (p. 343 ) proposal, it is hard to see why de minimis should have any exculpatory significance in a theory of penal liability.

As we have seen, these three scholarly attempts to contrast offences from defences appear to have very different implications for the treatment of de minimis in penal codes. Of course, my own efforts to apply these abstract proposals to the plea of de minimis—a plea that none of these theorists had in mind when drawing the distinction—may be misguided. As I have said, my interpretations involve enormous conjecture and speculation. But where does this brief exercise leave us if my efforts are on the right track? My very tentative conclusions are as follows. We have reason to prefer Fletcher's proposal for distinguishing offences from defences if we hold that de minimis should sometimes function as a true defence and sometimes should function as the contrary of an element of an offence. But we have a basis to prefer Duff's device for drawing this contrast if we think that de minimis should function as the contrary of an element of an offence but never as a true defence. And we have reason to prefer Gardner's idea for distinguishing offences from defences if we believe that de minimis should play no role in a theory of criminal liability at all, but only in sentencing. Once again, however, I repeat the highly speculative nature of these conclusions.

I have further suggested that we might begin with an example in which we are inclined to believe that a defendant should be acquitted because his conduct is de minimis—such as the theft of a piece of bubble-gum. If we are relatively certain either that the contrary of de minimis should be part of an offence or that de minimis should be a defence from liability, we can use our confidence to assess the foregoing proposals about how the contrast between offences and defences should be drawn. Unfortunately, with the possible exception of a handful of cases, I suspect that criminal theorists will lack firm intuitions about such matters. Reflective equilibrium is not a methodology that can generate clear conclusions when intuitions about matters both abstract and specific are so frail and uncertain. At the end of the day, I draw no straightforward and unambiguous lessons about de minimis by reflecting on the distinction between offences and defences. Nonetheless, I hope to have moved the inquiry a small way forward by hazarding a few tentative observations.

5 WHAT KIND OF DEFENCE?

Assuming that de minimis sometimes has exculpatory significance, criminal theorists should be uncertain when it should serve as a true defence or when its contrary should be included in the definition of an offence. Part of the explanation for this uncertainty is that we are unclear about how to contrast offences from defences and (p. 344 ) how various proposals for drawing this distinction apply to our fuzzy intuitions about de minimis. In this section I will suppose that we somehow overcome these obstacles and decide in a given case to treat de minimis as a true defence—as it is portrayed in the Model Penal Code. I then ask: What kind of defence could it be? As we will see, enormous confusion surrounds the question of how to conceptualize and understand this plea within conventional defence categories. De minimis cannot qualify as (what might be called) a denial that the offence occurred, since this allegation does not amount to a defence. Among true defences, there are only three possible ways to construe de minimis unless we jettison a great deal of orthodox wisdom in criminal theory. First, de minimis might function as a justification. Second, it could be an excuse. Finally, the existence of a true de minimis defence might show that not all substantive defences can be conceptualized either as justifications or excuses, thus demonstrating the need for additional categories. In my judgment, none of these three possibilities should be dismissed out of hand. If each proves to be untenable, however, we have reason to re-examine our initial decision to treat de minimis as a true defence. The exculpatory significance of this curious plea must be located in offences—or rejected entirely.

Paul Robinson endorses the third of these alternatives. He claims: ‘the de minimis infraction defence … does not exculpate a defendant because of a justifying or excusing condition, but rather serves to refine the offence definition … [The defendant] is outside the harm or evil sought to be prevented and punished by the offence.’⁴³ Some theorists believe that justification and excuse exhaust the terrain of substantive defences so that no third type is possible. Still, Robinson may be correct to suppose that not all defences can be pigeon-holed into our pre-existing categories of justification and excuse.⁴⁴ If he is right, however, one wonders why conduct that is ‘outside the harm or evil sought to be prevented by the offence’ is properly proscribed by the offence in the first place. Robinson's position seems more apt with respect to the first rather than the second disjunct of section 2.12(2). As I have indicated, de minimis offences are not literally outside the harm the statute is designed to prevent.⁴⁵ Statutes that are vulnerable to the problem Robinson recognizes are overinclusive; if possible, they should be redrafted more narrowly.⁴⁶ Despite some sympathy with Robinson's remarks, I do not believe we should be quick to concede that de minimis cannot be assimilated into more familiar defence categories. Although I think we (p. 345 ) should allow the possibility that it should be regarded as an excuse, I will argue that the preferable option is to treat a true de minimis defence as a justification.

Despite major differences, the accounts of Fletcher, Robinson, and Gardner are all incompatible with efforts to construe true de minimis as an instance of this type of defence. According to Fletcher, ‘grounds of justification represent licenses or permissions to violate the prohibitory norm’.⁴⁷ He goes on to construe justifications as Hohfeldian privileges or liberties: ‘one has a duty to obey a prohibitory norm and a privilege to violate it when justificatory circumstances are present.’⁴⁸ It would be misguided, of course, to conceptualize de minimis as a permission or privilege to violate a prohibitory norm—as though persons have no duty not to violate a norm when their wrongdoing is trivial. To express the matter bluntly, no one is permitted to steal bubble-gum. Even more obviously, de minimis cannot be understood as a justification by those who share Robinson's more general views about this type of defence. All justifications, according to Robinson, describe circumstances in which defendants infringe norms to avoid a greater societal harm or to gain a greater societal benefit.⁴⁹ Clearly, no greater good is achieved when defendants commit de minimis offences. In addition, it would be ludicrous to believe that de minimis has the implications for third-party assistance and interference that Robinson assigns to justifications. If de minimis were a justification that operated pursuant to Robinson's principles, the state should encourage persons to commit de minimis infractions and forbid them to interfere when others perpetrate them.⁵⁰ Needless to say, each of these implications is patently false. Finally, suppose that Gardner is right to think that a justification does not cancel but rather ‘defeats the reasons against an action’.⁵¹ No one believes that the fact that a particular crime is de minimis serves to wholly defeat the reasons against committing it. If any of these theorists were correct about the nature of justification, a true de minimis defence could not possibly qualify as an instance of this kind of defence.

If de minimis can be a justification, each of the above theorists must be mistaken about the nature of this type of defence. How should our understanding of justification be altered to allow the possibility that de minimis might justify criminal conduct? Details aside, conduct is generally regarded as justified when it is permissible, that is, when it is not wrongful all-things-considered. Suppose we say, however, that a person is justified not only when his conduct is not wrongful, but also when his conduct is not wrongful enough—in other words, not sufficiently wrongful—to merit criminal condemnation. De minimis does not cancel, negate, or override the presumptive wrongfulness of a criminal offence altogether, but precludes a sufficient (p. 346 ) degree of its presumptive wrongfulness to render the defendant ineligible for punishment. In section 6, I will address the issue of why we should withhold criminal liability from defendants whose conduct is not literally permissible, but is relatively close to being permissible. For now, the crucial point is that this conception of the nature of justification would allow a de minimis plea to function as a justification (or what might be called a quasi-justification) from criminal liability.

Whether or not we accept my proposal to revise our understanding of the nature of justification, we should also inquire whether de minimis could function as an excuse from criminal liability. Although the nature of excuse has probably created even more controversy than the analogous debate about justification, scholarly thought about this topic is equally unreceptive to the possibility that this plea could be an instance of this type of defence. Typically, excuses are thought to cancel or eliminate altogether the blame deserved by a defendant who commits a criminal act without justification.⁵² If de minimis were to qualify as an excuse, however, this characterization must be too narrow. De minimis offenders are not totally blameless. How would theorists have to characterize excusing conditions in order for de minimis to be an instance of this defence type? My answer is not unlike that provided in the context of justification. Perhaps an excuse should not be understood to preclude blame for unjustified conduct altogether, but merely to reduce it to an amount too small to merit punishment. Again, we may be dubious that excuses should be construed in this way. But this interpretation allows de minimis to be conceptualized as an excuse (or a quasi-excuse) from liability.

Although I do not believe that it is obviously mistaken to conceptualize de minimis as an excuse, my own slight preference is to regard it as a justification—if we amend the nature of justification in the way I have described. I tend to believe that excuses pertain to persons, and justifications pertain to conduct. Even though distinguishing properties of agents from properties of their actions is often difficult, this general problem is not especially troublesome in the case of de minimis. Clearly, the claim that a crime is de minimis describes the action rather than the agent who performed it. If so, de minimis is better regarded as a justification than as an excuse—assuming, of course, that we accept my device for contrasting these two types of defence.

Alas, matters are not so simple. An additional consideration might be thought to militate in the opposite direction, indicating that a true de minimis defence is better construed as an excuse than as a justification. A number of theorists have contended that justifications are part of the ‘conduct rules’ of law so that persons are entitled to rely ex ante on their content.⁵³ Defendants should be placed on notice of what behaviour is justified, and may employ this information when deliberating what to do. By (p. 347 ) contrast, excuses are ‘rules of adjudication’, addressed ex post to courts rather than to persons. Thus defendants should not be entitled to rely on the availability of an excuse in planning their behaviour. For example, a defendant is not treated unjustly simply because the state alters the legal test of insanity to his detriment. So much the worse for him if he would not have committed the crime but for his expectation of an excuse. If indeed justification and excuse differ in this respect, it should be apparent that a true de minimis defence should not be categorized as a justification. No one should rely on the availability of a de minimis defence in planning his behaviour. Shoppers in retail stores, for example, should not be encouraged to calculate the threshold at which their theft exceeds de minimis in order to insulate themselves from criminal liability.

Clearly, the supposition that persons are entitled to rely on the availability of a justification must be mistaken if de minimis is to count as an instance of this defence type. Fortunately, the foregoing revision in the nature of justification gives us good reason to reject this supposition. Justified conduct need not be all-things-considered permissible; it may still be wrongful. If justified conduct is wrongful, although not wrongful enough to merit criminal liability, the law has less reason to allow defendants to use their knowledge about justification when making plans. Thus this argument, at least, does not show why a true de minimis defence cannot be regarded as a justification.

What should we say about notice? Even though I have argued that the recognition of a de minimis justification need not be construed to entail that the theft of a miniscule amount is literally permissible, I am sure that the inclusion of a specific dollar amount that could be stolen before a defendant would become liable for theft would be misconstrued to authorize takings under that amount. In the words of Stuart Green, this information would be misinterpreted to confer a ‘license to steal’ on petty shoplifters.⁵⁴ This fear would arise whether de minimis were a true defence or its contrary were included in an offence. On either alternative, the law should avoid precise language about what counts as de minimis. This result is yet another surprising implication of the claim that de minimis should be afforded exculpatory significance. Ordinarily, we tend to value precision and specificity in statutory language—whether that language is included in an offence or in a defence of justification. Vagueness is typically regarded as antithetical to the rule of law. But the threshold for de minimis should remain uncertain. Since the state wants to discourage all thefts, a true defence of de minimis should probably say that defendants are not liable for causing minimal harms—without specifying which harms qualify.⁵⁵ Unfortunately, this strategy guarantees that different officials will make different (p. 348 ) judgments about which particular cases are eligible for exculpation under a de minimis rationale. But the price paid for uniformity is too great.

Suppose I am correct to conclude that the law should sometimes, somehow, acquit defendants for de minimis crimes. Even in the context of petty shoplifting, where it seems that persons should not be punished for trivial infractions, it is tempting to punish them anyway—to prevent others from incorrectly believing that such behaviour is permissible. But justice requires us to reject this argument. No one should be punished in the absence of desert, and I have assumed that defendants who commit de minimis offences do not deserve to be punished.⁵⁶ Thus they do not deserve to be punished even to serve the broader goals of crime prevention. What, then, should be done to such persons? If de minimis shoplifters should not be punished, but cannot be allowed to steal with impunity, it follows that mechanisms to discourage de minimis shoplifting must be found outside the parameters of the criminal law. According to Green, such mechanisms are already in place.⁵⁷ Criminal theorists should applaud these developments.

I emphasize yet again that often it is appropriate for the contrary of de minimis to appear in an offence. Sometimes, however, I assume that de minimis should function as a true defence. When this is so, I am not altogether confident that it should be regarded as a justification, an excuse, or as some third category of defence—although I have a slight preference for the former alternative. The important point, however, is that we would need to reconceptualize the nature of justification and excuse in order to categorize de minimis as an instance of either of these types of defence. The necessary reformulations seem plausible to me, and no competing conceptualization of the de minimis defence is less problematic. However this issue is ultimately resolved, I hope it is clear that careful thought about the exculpatory force of de minimis has broader significance, helping to shed light on the nature of justification and excuse more generally.

6 NORMATIVE CONSIDERATIONS

Thus far I have relied almost solely on intuitions in supposing that some defendants who commit de minimis crimes should somehow escape liability and punishment. I (p. 349 ) admit that these intuitions are frail and unlikely to be universally shared. Perhaps the formidable difficulties in conceptualizing de minimis within orthodox criminal law theory provide reason to be sceptical that this plea has exculpatory significance. Why should de minimis ever be relevant to liability as opposed to sentencing? A response to this question must begin by taking a few points for granted. Unquestionably, de minimis crimes are less serious, ceteris paribus, than crimes that are not. The seriousness of crime is a function of its culpability, wrongfulness, and harm.⁵⁸ A particular offence is de minimis when it is much less wrongful because it causes much less harm than a typical offence of that type, and therefore is far less serious. The controversial claim is that the imposition of liability and punishment are unjust when the seriousness of a given criminal act meets this description. In the remainder of this chapter I try to offer some inconclusive support for this claim.

Why should the degree of wrongfulness of criminal conduct have to exceed a given threshold before punishment is warranted? Of course, consequentialists have a powerful reply. Criminal law is expensive, error-prone, and subject to abuse, and should not be invoked when its costs exceed its benefits.⁵⁹ Resort to penal sanctions is likely to do more bad than good when an offence is trivial. Little more needs to be said to explain why de minimis should have exculpatory significance in criminal law. But this reply, as I have indicated, does not purport to show why defendants do not deserve to be punished for their minor misdeeds. A conception of retributive justice is required to find a desert-based rationale to preclude liability for de minimis offenders. Retribution should not be exacted through the penal law when defendants engage in trivial wrongdoing. Why not?

I contend that the very meaning of retributive guilt entails that the censure and blame that attends a criminal conviction cannot be trivial. A penal conviction is and ought to be stigmatizing. Labelling a person as a criminal expresses not only that he acted wrongfully, but also that his wrongful act rises (or sinks) to a level of seriousness that makes the application of that label appropriate.⁶⁰ A principle of fair labelling governs not only particular crimes, but also the criminal category as a whole. The criminal law is and ought to be different from other devices to convey censure.⁶¹ A principle of retributive justice should be construed not to allow the punishment of all culpable wrongdoing, but only of culpable wrongdoing that is wrongful enough to merit the powerful stigma of a criminal conviction. After all, criminal blame is not simply a judgment of censure. It is a judgment that is publicly and formally expressed, and used for countless practical purposes that disadvantage those to whom it is applied. A given offence must be relatively serious if a conviction (p. 350 ) should automatically trigger a wide variety of collateral consequences.⁶² As long as we want a criminal record to retain its expressive meaning and real-world significance, we should not impose penal liability on a trivial breach.

Applications of the principle of proportionality suggest a similar result. I construe this principle to require the severity of the punishment to be a function of the seriousness of the offence.⁶³ As I have said, the seriousness of the offence, in turn, is partly a function of its wrongfulness. When wrongdoing is utterly trivial, no criminal sanction—not even a suspended sentence—can be proportionate to it. Any amount of state punishment, no matter how lenient, imposes greater stigma on defendants than they deserve and is disproportionate to the seriousness of their offence.⁶⁴ If so, a theory of criminal law that takes proportionality seriously has reason to afford exculpatory significance to de minimis.

If the foregoing considerations are cogent, some of the most fundamental concepts in criminal law function somewhat differently than their moral counterparts. Although I generally believe that the criminal law should track moral philosophy closely,⁶⁵ the exculpatory significance of de minimis indicates an important respect in which they appear to diverge. Unlike moral blame—which arguably exists notwithstanding its triviality—the blame that attends a criminal conviction cannot be trivial.⁶⁶ To be sure, wrongdoing and blame admit of degrees, both in morality and in law. In morality, however, infinitesimal amounts of blame are cognizable. In criminal law, by contrast, quanta of blame beneath a given threshold cease to qualify as criminal blame at all.

I admit that the foregoing considerations are sketchy and provide almost no guidance in deciding when de minimis should be afforded exculpatory significance—either as the contrary of an element of an offence or as a true defence. How wrongful must conduct be before it is not wrongful enough to merit penal liability? Although I doubt that this question is possible to answer generally,⁶⁷ we might turn to our reactive emotions for clues. Under what conditions do victims of crime feel resentment or indignation, and when do offenders feel guilt or remorse? De minimis offenders should be exculpated when persons with normal sensibilities in a given community (p. 351 ) do not exhibit a sufficient degree of these reactive attitudes to warrant imposing the stigma that attends a criminal conviction. This approach introduces an empirical dimension into our inquiry. We may find that many crimes—such as petty acts of shoplifting or employee theft—attract little stigma. Moreover, large numbers of persons commit these offences,⁶⁸ and it is hard to see how a response to wrongdoing can stigmatize if a great many individuals in similar circumstances engage in the same behaviour.⁶⁹ Particular crimes are de minimis when the demand for retributive punishment recedes to the vanishing point. Admittedly, precise lines about this matter are exceedingly hard to draw. But no one should conclude that the de minimis plea lacks exculpatory significance because of the difficulty in drawing precise lines. In this respect, controversies about de minimis resemble those about almost every topic in moral and criminal theory. My primary ambition has not been to resolve these debates, but to respond to the scholarly neglect about de minimis by demonstrating how careful reflection about this exculpatory consideration relates directly to several of the most basic issues in the philosophy of criminal law.