Abstract
De minimis defenses are an understudied aspect of law, appearing in legal practice more often than in legal theory but rarely garnering any type of extensive analysis in either. This has led to an unfortunate state of affairs in which one term is applied to a set of practices that are, at best, only loosely connected. Using Paul Robinson’s system of defense types, this paper will illustrate the various roles and functions the de minimis defense plays in our legal system. In doing so, it will highlight the dangers of viewing the defense as monolithic and suggest that our terminology surrounding de minimis ought to be revised due to the differing justifications that support the application of each de minimis type.
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04 July 2017
An erratum to this article has been published.
Notes
“An age-old maxim often applied but infrequently rationalized is that of de minimis non curat lex.” (Veech and Moon 1947, 537); “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” (Husak 2011, 328); “Surprisingly … the Model Penal Code, section 2.12, has attracted little attention … and has been almost entirely ignored by legal academia” (Pomorski 1997, 51); “Given its prominence as a centuries-old interpretive aid, de minimis has received surprisingly little theoretical attention” (Inesi 2006, 946).
Much work has been done on defenses since Robinson first published his schema—particularly on the offense/defense distinction, justifications, and excuses. However, though the importance of these contributions should not be minimized, I do not think that they have direct relevance to the issue I am exploring here. While some of the more recent work might argue that what I classify as an offense modification should be called a denial of the offense or what Robinson would call an excuse should, instead, be an exemption, the larger point remains that the de minimis defense operates in distinct ways which affect our normative assessment. The more modern work done on defenses does not significantly alter the assessment of the underlying mechanisms at play for the de minimis defense.
See Robinson (1982).
For Fletcher’s account of offenses as embodying prohibitory norms, see Fletcher (2000), in particular Chapter Seven.
See, for example, Duff (2007, 264–265). For a slightly opposing view, see Gardner (2007, 77–82). Here, Gardner rejects the “closure view” and endorses this alternative: there can be such a thing as justified wrongs. While his (re)introduction of the tragic (in an Aristotelian sense) does differentiate his assessment of justified actions from, say, Duff’s or Robinson’s assessments, for the purposes of criminal law, the difference is not significant. Gardner holds that it is better to not need an excuse than to be excused, but he also holds that justified wrongs are not appropriate grounds for punishment and that justified wrongs can be, all things considered, right.
As Duff notes, there can be two ways in which the actor commits a wrongful action but is not culpable: she can be exempted from responsibility or she can be held responsible but excused (meaning that the action does not show her to be unreasonable in the relevant sense) (Duff 2007, 284–291, 289). Robinson speaks of excuses as negating responsibility, though his sense of “responsibility” is much broader than that found in Duff and Gardner, who also view excuses as not negating responsibility (see Gardner 2007, 82–87). I will generally follow the modern usage regarding responsibility, using terms like “culpability” or “blameworthiness” instead.
“The de minimis infraction defense is also an offense modification. It does not exculpate a defendant because of a justifying or excusing condition, but rather serves to refine the offense definition” (Robinson 1982, 211). However, Robinson does limit this classification, asserting that “While the defense would seem to be theoretically applicable to all offenses, whether and how it will apply is in each case a direct function of the particular offense at issue.” (Ibid.) At the end of this paper, I hope the reader will agree that placing the de minimis defense under the heading of any single defense type, even with this caveat, is misleading and not reflective of how the defense operates.
Other examples of offense modification defenses include the renunciation defense to inchoate offenses (renunciation negates the harm inchoate offenses seek to prohibit); the so-called “Wharton’s rule” regarding conspiracy; the “faculty member of an institution of higher learning” defense to disseminating obscene material; the defense of having a prescription for possession of a controlled substance; and uncontrollable circumstances as a defense for bail jumping (Robinson 1982, 209–211).
See HRS (Hawaii Revised Statutes) § 702–236 (1972); 17-A M.R.S.A. (Maine Revised Statutes Annotated) § 12 (1975); 18 Pa.C.S.A. (Pennsylvania Statutes and Consolidated Statutes Annotated) § 312 (1978); and N.J.S.A. (New Jersey Statutes Annotated) 2C:2-11 (1979).
For example, see M.C.L.A. (Michigan Compiled Laws Annotated) 324.11514 (2008), which prohibits the delivery of more than a de minimis amount of certain items to a landfill for disposal.
For example, see A.R.S. (Arizona Revised Statutes) § 3-368 (1996) and A.A.C. (Arizona Administrative Code) R3-3-503 (1987). The latter specifies de minimis violations of the former pesticide control statute; the violations commonly involve improper record-keeping.
Pomorski follows this usage as well, referring the subsection as “the de minimis infractions doctrine proper.” (Pomorski 1997, 76).
For example, see State v. Smith, 195 N.J. Super. (N.J. Super. Ct. Law Div. 1984) (stealing three pieces of bubble gum); State v. Zarrilli, 216 N.J. Super. (N.J. Super. Ct. Law Div. 1987) (taking a sip of beer); and Commonwealth v. Hoffman, 714 A.2d (Pa. Super. Ct. 1998) (driving an overweight truck 0.10 miles).
See State v. Smith 195 N.J. Super. 477 (N.J. Super. Ct. Law Div. 1984): “The Legislature has by its enactment indicated its intention that trivial matters should be dismissed when the “condemnation of conviction” is not warranted … This is such a case.”; State v. Zarrilli 216 N.J. Super 240 (N.J. Super. Ct. Law Div. 1987): “the harm to society caused or threatened by William Zarrilli's conduct was so minimal as not to warrant the condemnation of a conviction. It was de minimis.”; and Commonwealth v. Hoffman 714 A.2d 446 (Pa. Super. Ct. 1998): “appellant's violation of 75 Pa.C.S.A. § 4941 was too trivial to warrant the condemnation of conviction.”.
See State v. Nevens, 197 N.J. Super. (N.J. Super. Ct. Law Div. 1984). The court dismissed the charge under N.J.S.A. 2C:2-11(a) – “[the action] was within a customary license or tolerance, neither expressly negated by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense” (State v. Nevens, 197 N.J. Super. (N.J. Super. Ct. Law Div. 1984)).
See State v. Kargar, 679 A.2d (Me. 1996). The defendant in this case kissed his son’s penis, in accordance with Afghani custom, and was charged with gross sexual assault. The Supreme Judicial Court of Maine dismissed the charges as de minimis: “Subsection 1(C) provides a safety valve for circumstances that could not have been envisioned by the Legislature. It is meant to be applied … when application of the criminal code would lead to an ‘ordered but intolerable’ result. Model Penal Code § 2.12 comment (1985) …. [T]he trial court was required to consider the possibility that the result of a Class A conviction in this case could not have been anticipated by the Legislature when it defined the crime of gross sexual assault.” (State v. Kargar, 679 A.2d 85 (Me. 1996)) It concluded that “the conduct cannot reasonably be regarded as envisaged by the Legislature in defining the crime.” (State v. Kargar, 679 A.2d 86 (Me. 1996)).
See Commonwealth v. Jackson, 354 Pa. Super. (1986) (“[T]he cost of a jury trial would be substantial especially in the light of the increased security measures which would be required. The trial judge found that the Appellees' conduct did not justify the expense of a trial …”); and Commonwealth v. Houck, 233 Pa. Super. 512 (1975) (“[T]he trial judge would not let this trifling matter proceed to verdict … We agree with the propriety of the trial judge's action in dismissing the case.”).
See People v. Doe, 602 N.Y.S.2d 507 (N.Y. City Crim. Ct. 1993). The court dismissed assault charges in the interest of justice; see also State v. Park, 55 Haw. 610 (1974), which holds the following factors as relevant to the de minimis analysis: “the background, experience and character of the defendant which may indicate whether he knew or ought to have known of the illegality; the knowledge of the defendant of the consequences to be incurred upon violation of the statute; the circumstances concerning the offense; the resulting harm or evil, if any, caused or threatened by the infraction; the probable impact of the violation upon the community; the seriousness of the infraction in terms of punishment, bearing in mind that punishment can be suspended; mitigating circumstances as to the offender; possible improper motives of the complainant or prosecutor; and any other data which may reveal the nature and degree of the culpability in the offense committed by the defendant.” State v. Park, 55 Haw. 591. Cited with approval by State v. Smith, State v. Zarrilli, and State v. Kargar.
As a reminder, the section states: “The Court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense 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 offense or did so [cause or threaten the harm or evil sought to be prevented by the law defining the offense] only to an extent too trivial to warrant the condemnation of conviction …” (MPC, § 2.12, italics added).
The concept of bare harms is found in Dworkin (1985, 80).
Dworkin (1985) has a similar concept which he calls “moral harms” and contrasts with bare harms. However, the term is broader than what I mean by principle harm. The latter covers only moral harms protected against in the legal code, whereas moral harms relate to all unjust treating.
For this paper, I use “principle harms” to refer only to rights violations and not rights infringements. While I think it would be worthwhile to explore principle harms as rights infringements and violations in a later paper, I chose to go with the narrower scope here to avoid a lengthy tangent.
For another example, consider the offense of kidnapping, as is described in the MPC, § 212.1: “A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following purposes…” This offense does not require that the victim be aware of the kidnapping or suffer any bare harm from it. While some of the purposes that follow in the statute do involve the infliction of bare harms, the offense itself does not require that these come to fruition – the mere taking of another with the purpose of inflicting bare harm is sufficient to be criminalized as kidnapping (even though the attempt to inflict the bare harms may be themselves criminalized under a different statute).
To give an example of a case where a kidnapping occurs but no bare harm results, consider the following scenario: a napping politician is taken from her room and driven a significant distance away to prevent her from voting on a bill (and so meeting purpose (d) “to interfere with the performance of any governmental or political function”). She is taken without her permission but also without her knowledge. Luckily for her captors, she is a very heavy sleeper and remained asleep for the entire duration of the kidnapping process. The captors either (1) return her before the vote and so do not actually interfere with the performance of a governmental function or (2) return her after the vote, which she would have slept through anyway, where a counterfactual account of harm is stipulated.
In this hypothetical, the victim does not suffer, and the world is not made worse off when considering only bare harms. Yet, the offense is still committed.
Some defendants are more successful than others in arguing that exceeding the quantitative boundaries of the law by a tiny amount are, in fact, harmless. In Commonwealth v. Hoffman the defendant drove an overweight truck 0.10 miles on a public road. The charge was dismissed because “[i]t can hardly be said that appellant caused actual harm” (714 A.2d 446 (Pa. Super. Ct. 1998)). In contrast, courts have generally been unwilling to grant a de minimis defense for drug convictions because they view even tiny quantities as causing or risking actual harm. For example, in State v. Ziegler, a New Jersey court held that 0.08 g of marijuana posed an “unacceptable social risk” (226 N.J. Super. 508 (Super. Ct. N.J. Law Div. 1988)). In State v. Vance, the Supreme Court of Hawaii held that 0.7584 g of a controlled substance could still be sold, transferred, or used, though it also noted that the de minimis principles would apply if “the possession of a microscopic amount in combination with other factors indicat[es] an inability to use or sell the narcotic” (61 Haw. 307 (1979)).
Official Code of Georgia Annotated [O.C.G.A.] § 40-14-8 (2012).
State v. Smith, 195 N.J. Super. 477 (N.J. Super. Ct. Law Div. 1984).
State v. Evans, 340 N.J. Super. (Super. Ct. N.J. App. Div. 2001).
Commonwealth v. Campbell, 273 Pa. Super. (1980).
Commonwealth v. Moses, 350 Pa. Super. (1986).
Robinson, “Criminal Law Defenses: A Systematic Analysis,” p. 231.
Pomorski provides an extensive list on page 77 of “On Multiculturalism, Concepts of Crime, and the ‘De Minimis’ Defense.”
Recall Commonwealth v. Jackson and Commonwealth v. Houck.
For more on this point, see Husak, “The De Minimis ‘Defence’ to Criminal Liability,” pp. 348–351.
See MPC § 2.12(2) and analogous sections in HRS § 702-236 (1972); 17-A M.R.S.A. § 12 (1975); 18 Pa.C.S.A. § 312 (1978); and N.J.S.A. 2C:2-11 (1979).
Or, to use Duff’s more precise term, an “exemption.”
In the cases found, the courts do not speak clearly enough to allow me to confidently say that there is such a de minimis case. However, such a thought may be motivating some de minimis dismissals.
References
Black, Henry Campbell. 1999. Black’s Law Dictionary. St. Paul, MN: West Group.
Duff, R.A. 2007. Answering for Crimes: Responsibility and Liability in the Criminal Law. Portland: Hart Publishing.
Dworkin, Ronald. 1985. A Matter of Principle. Cambridge, MA: Harvard University Press.
Fletcher, George P. 2000. Rethinking Criminal Law. Oxford: Oxford University Press.
Gardner, George. 2007. Offences and Defences: Selected Essays in the Philosophy of Criminal Law. Oxford: Oxford University Press.
Husak, Douglas. 2011. “The De Minimis ‘Defence’ to Criminal Liability.” In Philosophical Foundations of Criminal Law, edited by R.A. Duff and Stuart P. Green, 328–351. Oxford: Oxford University Press.
Inesi, Andrew. 2006. “A Theory of De Minimis and a Proposal for Its Application in Copyright.” Berkeley Technology Law Journal 21: 946–995.
Pomorski, Stanislaw. 1997. “On Multiculturalism, Concepts of Crime, and the ‘De Minimis’ Defense.” Brigham Young University Law Review 1997 (1): 51–99.
Robinson, Paul. 1982. “Criminal Law Defenses: A Systematic Analysis.” Columbia Law Review 82: 199–291.
Veech, Max L. and Charles R. Moon. 1947. “De Minimis Non Curat Lex.” Michigan Law Review 45 (5): 537–570.
Acknowledgements
A version of this paper was presented at the XXVII World Congress of the International Association for the Philosophy of Law and Social Philosophy (IVR). The author would like to thank Doug Husak for comments on an earlier draft and Alec Walen for comments on a later one.
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The original version of this article was revised: The corresponding author name was incorrectly published as “Melissa Beth Henzel”. The corrected name is updated in the article.
An erratum to this article is available at https://doi.org/10.1007/s11572-017-9425-x.
Appendix: Case List
The cases are divided by jurisdiction and presented in chronological order within jurisdictions.
Appendix: Case List
Case namea | Court, year | Summary of alleged offense | Outcome |
|---|---|---|---|
Porter v. Rushing | District Court, W.D. Arkansas, El Dorado Division, 1946 | The defendant allegedly rented accommodations for $9 per month, which was $1 per month over the maximum rental allowed by law. The total alleged overcharge was $14 | The District Court dismissed on its own motion the charges as de minimis and hinted at over-zealousness on the part of the Office of Price Administration. The Eighth Circuit later overruled this opinion, holding that the district court did not have the discretion to act as it did. However, the higher court did not comment on the court’s characterization of de minimis |
State v. Park | Supreme Court of Hawaii, 1974 | The defendants violated state election law that requires “any candidate who was not nominated at primary election file an itemized statement of expenses within 20 days following primary election.” | The District Court dismissed the charges, holding that the offense was de minimis. The Supreme Court reversed: “it was an abuse of discretion to dismiss the charges as de minimis infractions, without any indicators to show that each of these offenses was in fact an innocent, technical infraction, not actually causing or threatening any harm or evil sought to be prevented by HRS § 11-193 (Supp. 1972), or that the harm or evil caused or threatened was so trivial to warrant the condemnation of conviction” |
State v. Vance | Supreme Court of Hawaii, 1979 | The defendants possessed 0.7584 g of a substance containing cocaine and three secobarbital tablets | The possessions were not de minimis because the possession in combination with other factors did not indicate that the defendants were unable to sell, transfer, or use the drugs |
State v. Kargar | Supreme Judicial Court of Maine, 1996 | The defendant, in accordance with cultural norms (specifically Afghani custom), kissed his son’s penis. He was charged with gross sexual assault | The court dismissed the charge under the de minimis statute, holding that the harm was not that envisaged by the Legislature when enacting the statute. In applying the defense, the court also considered other factors: the character and background of the defendant; whether the defendant knew of the statute, that his actions fell within it, and the consequences for breaking it; the resulting harm; the impact on the community; the seriousness of the infraction; mitigating circumstances |
State v. Hegyi | Superior Court of New Jersey, 1982 | The defendant obtained and presented to the county prosecutor false affidavits. He then called the prosecutor the following day to inform the official that he believed the affidavits were false. He was charged with violating statutes governing the fabricating of physical evidence, tampering with witnesses and informants, and the giving of false reports to law enforcement authorities | The court denied a motion to dismiss as de minimis and held that a jury question was presented by the evidence |
State v. Brown | Superior Court of New Jersey, 1983 | The defendant was indicted for possession of 0.65 g of cocaine | The court held that the possession was not de minimis |
State v. Smith | Superior Court of New Jersey, 1984 | The defendant stole three pieces of bubble gum from a convenience store | The court granted the motion to dismiss on de minimis grounds |
State v. Nevens | Superior Court of New Jersey, 1984 | The defendant took fruit from an all-you-can-eat buffet | The court held that the action was “within a customary license or tolerance” and so dismissed on de minimis grounds |
State v. Zarrilli | Superior Court of New Jersey, 1987 | The defendant, an underage 20-year-old, took one sip of beer | The Superior Court affirmed the Appellate Court’s dismissal on de minimis grounds. The Appellate Court overturned the trial court’s conviction, claiming that the dismissal of the prosecution benefited and protected society since the offense was too trivial to warrant condemnation |
State v. Downey | Superior Court of New Jersey, 1988 | The defendant, a talk-show host, struck his guest with the back of his hand during an argument | The court held that the action was not de minimis, claiming that such behavior posed an unacceptable risk of harm to the public |
State v. Ziegler | Superior Court of New Jersey, 1988 | The defendant, a minor, possessed 0.08 g of marijuana. He also possessed drug paraphernalia | The court rejected the de minimis defense, noting the “unacceptable social risk” the conduct posed |
State v. Cabana | Superior Court of New Jersey, 1997 | The defendant struck a fellow politician while waving a flier during a confrontation | The court dismissed the case as de minimis, holding that the conduct was not sufficiently serious to warrant prosecution for simple assault |
State v. Evans | Superior Court of New Jersey, 2001 | The defendant stole a hair accessory priced at $12.90 | The Superior court reversed the trial court’s decision to dismiss. It held that the lower court had insufficient evidence on which to base a finding that the conduct was too trivial to warrant conviction |
People v. Doe | Criminal Court, City of New York, 1993 | The defendant, a hearing impaired and learning disabled 21-year-old, was charged with assault for her part in a fight that started between her sister and her sister’s classmate. The classmate suffered scratches to her face, and the sister was acquitted on the same day the defendant was convicted | The court dismissed the case as de minimis, holding that a conviction would be an injustice because: The injuries from the fight were de minimis D’s involvement in the fight was de minimis The lack of evidence that violent tendencies had occurred since the incident also counted in favor of dismissal |
Commonwealth v. Houck | Superior Court of Pennsylvania, 1975 | The defendant made phone calls in which he stated that a former friend was “lower than dirt” and “morally rotten.” He was charged with harassment by communication | The court dismissed the case as de minimis, describing the matter as “trifling” |
Commonwealth v. Campbell | Superior Court of Pennsylvania, 1980 | The defendant stole $1.97 worth of merchandise | The court held that the fact that the property stolen was worth only $1.97 did not mandate a dismissal on de minimis grounds |
Commonwealth v. Eliason | Superior Court of Pennsylvania, 1986 | The defendant drove an unregistered vehicle for seconds on a public highway while his license was suspended. He was charged for driving with a suspended license and for driving an unregistered vehicle | The court held that the offense—though momentary—was not de minimis |
Commonwealth v. Jackson | Superior Court of Pennsylvania, 1986 | The defendants (prison inmates) blocked the pathway of a prison guard who was attempting to lock up another inmate | The court upheld a lower court’s dismissal. The trial judge held that the conduct did not justify the expense of a trial and dismissed the charges as de minimis in light of judicial economy |
Commonwealth v. Moses | Superior Court of Pennsylvania, 1986 | The defendant stole 35¢ from a 10-year old | The court held that the action was not de minimis, noting that the law should protect the meager possessions of a child as much as those of an adult |
Commonwealth v. Moll | Superior Court of Pennsylvania, 1988 | The defendant cut a hole in a storm drainpipe installed by the borough and was charged with criminal mischief | The court dismissed as de minimis, holding that the action did not cause the harm the statute sought to protect against and so was too trivial to warrant condemnation |
Commonwealth v. Miller | Superior Court of Pennsylvania, 1989 | The defendant failed to appear in court because the victim was dropping the case and no one would be hurt by his absence | The court rejected the de minimis defense, holding that the action constituted the harm sought to be prevented: obstruction of the operation of the judicial system |
Commonwealth v. Hoffman | Superior Court of Pennsylvania, 1998 | The defendant drove an overweight truck 0.10 miles on a Pennsylvania road | The court held that the infraction was too trivial to warrant condemnation and that the Legislature did not envisage the statute applying to a case like this. It dismissed the charge as de minimis—or a “petty” infraction |
US v. Alvarez | Court of Military Appeals, 1958 | The defendant possessed less than a gram of marijuana and was charged under military law | The court rejected the de minimis defense, holding that the statute protected against wrongful possession of drugs |
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Beth Valentine, M. Defense Categories and the (Category-Defying) De Minimis Defense. Criminal Law, Philosophy 11, 545–559 (2017). https://doi.org/10.1007/s11572-016-9393-6
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DOI: https://doi.org/10.1007/s11572-016-9393-6